Joy Sparks, JD

Fraud, Waste and Abuse:
What You Need to
Know Regarding
Medicaid, Solicitation
and Marketing
83rd Legislative Session
Senate Bill 8 addressed the
following areas:
1. Marketing by Medicaid/CHIP
2. Transportation of a child
3. Review of MCO’s Prior
Authorization and Utilization
Review Processes
Prohibition on Provider
Marketing Activities
Providers may not disseminate material or attempt
any other communication that
(1) involves unsolicited personal contact with a Medicaid
client or a parent whose child is enrolled in the Medicaid or
child health plan program;
(2) is directed at the client or parent solely because the client
or the parent's child is receiving benefits under the Medicaid
or child health plan program; and
(3) is intended to influence the client's or parent's choice of
Tex. Gov’t Code § 531.02115 (Senate Bill 8, Sec. 2)
Exceptions to Marketing
• Community-sponsored event, health fair, or outreach
activity that does not involve unsolicited contact or
promotion of provider’s practice
• General media
• Allowed by contract, such as personal communication
for appointment reminder, health materials, types of
services offered or coordinating patient care as
permitted by contract
• Approved by HHSC’s prior authorization process
Tex. Gov’t Code § 531.02115 (Senate Bill 8, Sec. 2)
Marketing Guidelines
Although Texas Gov’t Code § 533.008 and 1 Tex.
Admin. Code (TAC) § 353.405 currently address the
marketing guidelines for Medicaid managed care
providers, Senate Bill 8 requires a prior authorization
process for marketing materials under § 533.008.
Medicaid/CHIP division is in the process of
proposing rules creating the review process of
marketing materials.
Tex. Gov’t Code § 531.02115(e) (Senate Bill 8, Sec. 2)
Marketing Guidelines
Proposed rules - 1 TAC § 354.1452
• specifies the types of provider marketing that
are prohibited;
• specifies the types of provider marketing that
are considered permissible; and
• permits providers to submit proposed
marketing materials to HHSC for review and
prior authorization to ensure that the
materials are in compliance with the rule
Marketing Guidelines
Proposed rule 1 TAC § 354.1452 permits
certain marketing activities
• conducted at a community or nonprofit event that
does not involve unsolicited personal contact or
promotion of the provider’s practice that is not
used as part of health education;
• that involve only the general dissemination of
information and not unsolicited personal contact;
• allowed under Medicaid contract; or
• that have been submitted for review and authorized
by the commission
Marketing Guidelines
Proposed rule 1 TAC §
353.405 extends marketing
requirements to providers
under Medicaid managed care
and CHIP
Marketing Guidelines
MCO proposed contract language:
1. MCO must submit all Marketing Materials and Member
Materials to HHSC for review/approval prior to use.
2. HHSC will notify MCO of approval of materials or of
any required changes within 15 Business Days of receipt.
3. If HHSC does not respond within 15 Business Days,
MCO may use the submitted materials.
4. HHSC reserves the right to require discontinuation of any
materials that violate the terms of the Marketing Policies
or the Contract.
Marketing Guidelines
All Marketing materials directed to Medicaid MCO
and CHIP recipients must be:
1. Written at or below a 6th grade reading level (language required or
supplied by HHSC is exempt). The MCO must submit proof of
reading level with its requests for approval;
2. Written and distributed in English, Spanish, and the languages of
any other Major Population Groups in the Service Area;
3. Culturally appropriate; and
4. Geared to the health or dental needs of the enrolled MCO Program
(Consumer Information tool kit)
Marketing Guidelines
Materials that require review and approval include:
• Marketing Materials (including print media and
television/radio storyboard or scripts)
• Member Materials (including Provider Directories,
Member Handbooks, Member ID cards, and Member
• Information to be used on the MCO’s website or the
• CMS-approved Medicare materials that include Medicaid
Program benefits and services
Transportation of a child
For Medicaid reimbursement for early and
periodic screening, diagnosis, and
treatment program or the medical
transportation program, a child must be
accompanied by
1. the child's parent or guardian, or
2. another adult whom the child's parent
or guardian has authorized to
accompany the child.
Tex. Hum. Res. Code § 32.024 (Senate Bill 8, Sec. 18)
Transportation of a child
The authorized adult
cannot be the provider or
provider’s employee or
Review of Prior Authorization and
Utilization Review Processes
New Tex. Gov’t Code § 531.076 MCOs will be monitored by HHSC
to ensure that the organizations are
using prior authorization and
utilization review processes to reduce
authorizations of unnecessary
services and inappropriate use of
Tex. Gov’t Code § 531.076 (Senate Bill 8, Sec. 4)
"Abuse" definition added as follows:
(A) a practice by a provider that is inconsistent with
sound fiscal, business, or medical practices and that
results in:
(i) an unnecessary cost to the Medicaid program; or
(ii) the reimbursement of services that are not medically
necessary or that fail to meet professionally recognized
standards for health care; or
(B) a practice by a recipient that results in an
unnecessary cost to the Medicaid program.
Tex. Gov’t Code § 531.1011 (Senate Bill 1803, Sec. 1)
Texas Medicaid Fraud Prevention Act
expanded “unlawful acts” to include
• conspiring to engage in conduct that
constitutes a violation of TMFPA and
• retaining a Medicaid overpayment,
even if the person commits no
additional overt act.
Tex. Hum. Res. Code § 36.002 (Senate Bill 746, Sec. 1)
Texas Medicaid Fraud Prevention
Act expanded Whistleblower
actions to include “conspiring to
commit unlawful acts.”
Tex. Hum. Res. Code § 36.002 (Senate Bill 746, Sec. 1)
Contact Information
[email protected]
(512) 491-2864 (direct line)