The Texas Sunset Advisory Commission (the "Sunset Commission") is putting the state's health agencies under a microscope, which may result in huge policy and regulatory changes. We urge providers to recognize that policy initiatives frequently have a direct impact on the health care regulatory framework.
WALLER'S ROLE
We recognize that it can be very difficult for healthcare providers to navigate the Sunset Commission. It is important to note, though, that this review occurs every 12 years, and a negative outcome could have a significant long-term impact. Waller's government relations team has extensive experience in this area and develops a personalized approach for each client.
WHAT IS "SUNSET"?
The Sunset Commission is a legislative body that reviews the
policies and programs of Texas state agencies every 12 years. The
12 members of the Sunset Commission are appointed by the Lieutenant
Governor and the Speaker of the House, who select five members from
their respective bodies and one public member each. The remaining
appointments to this body were made by Speaker Straus on January
17, 2014 and the full slate is as follows:
- CHAIR: Senator Jane Nelson (R-Flower Mound)
- VICE CHAIR: Representative Four Price (R-Amarillo)
- Senator Brian Birdwell (R-Granbury)
- Senator Dan Patrick (R-Houston)
- Senator Juan "Chuy" Hinojosa (D-McAllen)
- Senator Charles Schwertner, M.D. (R-Georgetown)
- Representative Harold Dutton (D-Houston)
- Representative Cindy Burkett (R-Sunnyvale)
- Representative Larry Gonzales (R-Round Rock)
- Representative Richard Raymond (D-Laredo)
- Public Member Dawn Buckingham, M.D. (Austin ophthalmologist)
- Public Member Tom Luce (Dallas attorney and business consultant)
The current Sunset review cycle includes the primary Health and
Human Services enterprise agencies, as well as a handful of other
health-related agencies:
- Health and Human Services Commission
- Department of State Health Services
- Department of Aging and Disability Services
- Department of Assistive and Rehabilitative Services
- Texas Health Services Authority
- Texas Health Care Information Council
- Interagency Task Force for Children With Special Needs
Each agency submits a self-evaluation report, after which the policy staff of the Sunset Commission sets about analyzing and researching the agency to determine if the agency's functions continue to be needed, and to recommend changes that may improve effectiveness and efficiency in achieving the purposes of the agency. During the legislative session, legislation must finally pass in order to reauthorize an agency prior to its "sunset," or expiration date set in statute.
WHY SHOULD YOU CARE ABOUT SUNSET?
It is imperative to be involved in this process early on because these bills are carefully negotiated and guarded by their authors and sponsors. This means that once a recommendation has been adopted by the Sunset Commission, usually in the interim prior to session, it can be very difficult to amend or change the resulting legislation.
It is also important to note that Sunset bills may be used to address pet issues by the members, in particular those who have had a hand in healthcare policy for many years and whose opinion carries extra weight. Under the guise of improving government efficiency and effectiveness, members may find greater ability to push forward policy changes that failed in previous legislative sessions, because legislators that do not serve on the Sunset Commission may expect that Sunset bills will have had extra vetting and have already been negotiated prior to session.
DO WE KNOW WHAT MIGHT BE PROPOSED?
Each agency under review must submit a self-evaluation report, which provides an opportunity for the agency's leadership to point out areas for improvement or clarification. Here are a few highlights of note:
- The Health and Human Services Commission (HHSC) suggests evaluating transition of additional Medicaid-funded programs into managed care or "at least under HHSC's operational authority."
- HHSC recommends that HHSC have a centralized rate-setting office to set rates across the HHS system for consistency and uniformity in obtaining stakeholder input.
- HHSC is contemplating a larger role for MCOs with regard to Medicaid eligibility maintenance and continuity of care.
- Due to ACA requirements, HHSC is working to streamline, standardize, and simplify the provider enrollment process. This may also mean a more centralized system, rather than the current system that involves several different agencies and contractors.
- The Department of State Health Services (DSHS) recommends clarifying the definitions for general hospital, special hospital, and hospital premises.
- DSHS recommends increasing their administrative penalty authority from $1,000 to up to $25,000 per violation, per day, which was also the subject of failed legislation authored last session by Senator Nelson.1
- DSHS requests flexibility to create new license "types" through the rulemaking process to allow for regulation of entities that don't fall into current license categories but seek to do business in Texas. The agency would also like to mandate greater ownership disclosure requirements to improve their ability to pursue bad actors.
- DSHS would like to see statutory fee caps abolished in exchange for the authority to set fees in amounts reasonable and necessary to cover program costs.
- DSHS raises the question of whether the state should continue expansion of contracting privatized beds for inpatient psychiatric services.
- The Department of Aging and Disability Services (DADS) recommends expanding access to, and reimbursement for, assistive technology so that it is more consistently available to individuals regardless of the waiver program. The agency suggests a pilot program to test whether expanded access could reduce or prevent institutionalization, reduce costs to the state, and increase client satisfaction.
- The Texas Health Services Authority (THSA) recommends giving healthcare providers clear authority to use a Health Information Exchange (HIE) to report to and access information in certain DSHS registries, including communicable disease registries, cancer registries, and immunization registries. THSA would also like to add liability protection for HIEs and health care providers when exchanging information through an HIE.2
- THSA would like to extend the confidentiality protections afforded to government program IT security systems to IT security systems in general, or at a minimum, specifically include confidentiality protection to security systems that are audited by an agency that is subject to the Public Information Act.
MEETINGS SCHEDULE
The first public meeting of the Sunset Advisory Commission took place on February 19, 2014. The Sunset Commission received an overview of the review process from Sunset staff director, Ken Levine, and adopted a review schedule, operating budget, and rules.3 The Sunset Commission also approved a directive to Sunset staff and Texas Legislative Council to conduct a thorough review of the sections of code that concern the provision of the state's health and human services and draft legislation to "clean up" any existing conflicts, duplication, or confusion resulting from years of piecemeal revisions that do not reflect current practice. The intention is for this effort to be separate and apart from the Sunset legislation and to provide a "cleaner code" for Sunset bills to build upon. The Sunset staff reports to the Sunset Commission are expected to be made public in late May, which will be followed by a series of public hearings during the week of June 24-27 to review the findings and recommendations. After this, a subsequent hearing will be held during the week of August 11-15 to vote on recommendations and submit the decisions to the Legislative Council for drafting into legislation.
Footnotes
1.SB 153 (83R) failed to receive an affirmative vote in the House Public Health Committee.
2.Both provisions were included in a failed attempt to amend SB 7 (83R); the amendment was ruled non-germane by the House Parliamentarian.
3.Information will be posted at http://www.sunset.state.tx.us/outline.htm following the hearing.
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