RULE §5.58 Recovery of Certain State Agency Overpayments


Published: 2015

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(a) Definitions. In this section:   (1) "Consultant" means a person with which the comptroller has contracted under Government Code, Chapter 2115.   (2) "Investment vehicle" does not include real property.   (3) "Overpayment" has the meaning assigned by Government Code, §2115.001(1).   (4) "Recovery audit program" means the program established by the comptroller under Government Code, Chapter 2115, to recover vendor overpayments made by state agencies.   (5) "Retiree" means an individual who has been granted a retirement benefit under Government Code, Title 8, Subtitle B, C, D, E, or H.   (6) "Retirement benefit" includes a service retirement benefit, a disability retirement benefit, an occupational disability retirement benefit, a nonoccupational disability retirement benefit, and a death benefit paid by or on behalf of a retirement system.   (7) "Retirement system" means the Employees Retirement System of Texas, the Teacher Retirement System of Texas, the optional retirement program, the Judicial Retirement System of Texas Plan One, the Judicial Retirement System of Texas Plan Two, or the Texas Emergency Services Retirement System.   (8) "State agency" has the meaning assigned by Government Code, §2115.001(2).   (9) "State employee" means an officer or an employee of a state agency. The term does not include an independent contractor.   (10) "USAS" means the uniform statewide accounting system.   (11) "Vendor payment" does not include:     (A) a payment from money held outside the state treasury if the payment was not reported to USAS as a cash expenditure;     (B) a payment that already has been cancelled, recalled, refunded, or otherwise recovered;     (C) a payment that was made by warrant if it has not yet been negotiated;     (D) a payment of the compensation earned by a state employee;     (E) a payment of a retirement benefit by or on behalf of a retirement system;     (F) the refund by or on behalf of a retirement system of a member's accumulated contributions to the system;     (G) a payment of the amount deducted from:       (i) the compensation earned by a state employee; or       (ii) the payment by or on behalf of a retirement system of a retirement benefit or the refund of a member's accumulated contributions;     (H) a payment to an individual because of the individual's unemployment, under the Texas Unemployment Compensation Act, Labor Code, Title 4, Subtitle A;     (I) a payment to a governmental entity of this state, including a state agency, a municipality, a county, a public school district, a public school, or a political subdivision;     (J) a payment made by the Texas Department of Insurance in connection with the receivership of an insurance company;     (K) a payment for the purchase of a security or other investment vehicle, except that the term includes a payment of a commission or similar fee concerning the purchase;     (L) a payment of principal or interest, except that the term includes any interest paid under Government Code, Chapter 2251;     (M) a payment of the premium to provide group insurance coverage for state employees or retirees;     (N) a payment to a private person to administer a group insurance program for state employees or retirees;     (O) a payment of a loan to a private person if, as of the date of the payment, the entire amount of the loan is required to be repaid;     (P) a payment of a judgment against the state or a state agency or a payment to settle litigation involving the state or a state agency;     (Q) a payment made by a person that is not a state agency; or     (R) any other type of payment that the comptroller determines is not a vendor payment because the projected costs of including the payment type in the recovery audit program exceeds the projected amount of the recoveries from including the payment type in the program. (b) Scope of the recovery audit program.   (1) Except as provided in paragraph (2) of this subsection, the recovery audit program applies to each state agency and each vendor payment made by a state agency.   (2) The recovery audit program does not apply to a state agency or any vendor payment made by the agency during a state fiscal year if:     (A) the total amount of the agency's cash expenditures during the immediately preceding two state fiscal years was equal to or less than $100 million, as reported to USAS;     (B) the total amount of the agency's vendor payments during the immediately preceding two state fiscal years was less than 20% of the total amount of the agency's cash expenditures during those years, as reported to USAS; or     (C) the total amount of the agency's vendor payments during the immediately preceding two state fiscal years was less than $62.5 million, as reported to USAS. (c) Cooperation with the recovery audit program.   (1) A state agency that is subject to the recovery audit program shall cooperate fully with:     (A) any requirement of the comptroller established or adopted under Government Code, Chapter 2115; and     (B) any requirement of a consultant if the requirement is established or adopted pursuant to the recovery audit program.   (2) A state agency may direct a consultant not to pursue recovery of a payment that the consultant determines was an overpayment if:     (A) the agency determines that the payment was not in fact an overpayment and the comptroller agrees with the agency's determination; or     (B) the comptroller determines that recovery of the overpayment would not be in the best interests of the state. (d) Deposit of amounts recovered.   (1) A state agency that recovers money as a result of a recovery audit conducted under Government Code, Chapter 2115, shall deposit the money as required by applicable law, including the State Funds Reform Act, Government Code, Chapter 404, Subchapter F. This paragraph applies only if:     (A) the agency did not receive the money from the federal government before expending the money; and     (B) the federal government did not reimburse the agency for the expenditure.   (2) A state agency that recovers money as a result of a recovery audit conducted under Government Code, Chapter 2115, shall deposit the money as required by applicable law, including the State Funds Reform Act, Government Code, Chapter 404, Subchapter F, and federal law. This paragraph applies only if:     (A) the agency received the money from the federal government before expending the money; or     (B) the federal government reimbursed the agency for the expenditure.

Source Note: The provisions of this §5.58 adopted to be effective May 2, 2006, 31 TexReg 3587