Texas Register - July 30, 2021 Volume 46 Number 31

Texas Register Table of Contents

1 Health and Human Services Commission
2 Department of Aging and Disability Services
- - 2.0.1 Proposed Rules Re:
    - 2.0.1.1 Repealing 40 TAC §§5.151, 5.153 – 5.158, 5.161 to allow for the adoption of updated rules concerning diagnostic assessments for intellectual disabilities.

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §306.1351, allowing virtual health interactions to reduce the risk of transmission of COVID-19.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER Z. EMERGENCY RULEMAKING
26 TAC §306.1351

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 306 Behavioral Health Delivery System, new §306.1351, concerning an emergency rule in response to COVID-19, in order to reduce the risk of transmission of COVID-19, and to ensure continuity of services for individuals receiving community-based mental health services.

HHSC is adopting an emergency rule to establish flexibility of certain requirements to allow alternative methods other than face-to-face contact or in-person interactions, such as the use of telehealth, telemedicine, video-conferencing, or telephonic methods; allow virtual platforms instead of a specific physical space or in-person interactions, such as the use of a telephone or videoconferencing; allow a child or adolescent participating in the YES Waiver Program to reside with another responsible adult as the child or adolescent may not be residing with his or her legally authorized representative due to COVID-19 if the Centers for Medicare & Medicaid Services approves HHSC’s request for activation of Appendix K; list rules under Title 25, Part 1 and Title 26, Part 1 of the TAC that require staff training through face-to-face or in person or a specific physical space or on site; and modify staff training requirements.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

The purpose of the emergency rulemaking is to support the Governor’s renewal on July 1, 2021, of the March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rulemaking in response to COVID-19.

Proposed Rules Re:

New 26 TAC §304.101 and §304.102, detailing the purpose and definitions with regard to diagnostic assessments.

CHAPTER 304. DIAGNOSTIC ASSESSMENT
SUBCHAPTER A. GENERAL PROVISIONS
26 TAC §304.101, §304.102

OVERVIEW

Proposed new §304.101 establishes the purpose of the rules in the chapter.

Proposed new §304.102 provides definitions of words and terms used in the chapter.

BACKGROUND AND JUSTIFICATION

The Texas Secretary of State created Title 26, Part 1, of the Texas Administrative Code (TAC) to consolidate rules currently in Titles 1, 25, and 40, that govern functions of HHSC. As part of the consolidation into Title 26, HHSC proposes new rules in Chapter 304 of Title 26 to replace rules in Title 40, Chapter 5, Subchapter D, Diagnostic Assessment. The rules in Chapter 5, Subchapter D are proposed for repeal elsewhere in this issue of the Texas Register.

The proposed new rules are substantially similar to the rules in Title 40, Chapter 5. The proposed new rules update licensure requirements for authorized providers who are employed by or contract with local intellectual and developmental disability authorities (LIDDAs) or state supported living centers (SSLCs); identify authorized providers who are responsible for completing Determinations of Intellectual Disability (DID) which are required for admissions into Intellectual and Developmental Disability (IDD) Medicaid waiver programs and SSLCs; update diagnostic and other terminology while aligning with HHSC technical guidelines; clarify the right to an administrative hearing; and address requirements in the rule that are unrelated to diagnostic responsibilities.

New 26 TAC §§304.201 – 304.203, describing requirements for the determination of an intellectual disability.

CHAPTER 304. DIAGNOSTIC ASSESSMENT
SUBCHAPTER B. PURPOSE OF THE DETERMINATION OF INTELLECTUAL DISABILITY
26 TAC §§304.201 – 304.203

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new Chapter 304 of Title 26 of the Texas Administrative Code (TAC), including §§304.201, concerning Use of Information from a DID or Diagnostic Assessment; 304.202, concerning Request for a Determination of Intellectual Disability; and 304.203, concerning Right to an Independent Determination of Intellectual Disability or Administrative Hearing.

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §304.201 requires that a LIDDA use information from a DID or a report endorsed as a DID that was conducted in accordance with Subchapter D to determine an individual’s eligibility for LIDDA services. HHSC must use information from a DID or a report endorsed as a DID that was conducted in accordance with Subchapter D to determine an individual’s eligibility for certain services and supports provided through HHSC. The proposed new rule also lists the time-limited services an individual may receive without being determined to be a person with an intellectual disability, which includes emergency services and respite care in a residential care facility.
Proposed new §304.202 describes the three ways a DID can be requested. An individual or the individual’s legally authorized representative (LAR) may make a written request for a DID to: 1) a LIDDA serving the area in which the individual resides, 2) a psychologist licensed to practice in Texas, or 3) a physician licensed to practice in Texas. The proposed new rule also specifies that an authorized provider must conduct the DID.
Proposed new §304.203 provides that if the DID is conducted at a LIDDA or an SSLC, the LIDDA or SSLC must inform the person who requested the DID, orally and in writing, of the right to an additional, independent DID to be conducted at the person’s expense if the person questions the validity or results of the DID and the right to an administrative hearing to contest the determination of an intellectual disability, as described in 40 TAC Chapter 4, Subchapter D (relating to Administrative Hearings under Texas Health and Safety Code, Title 7, Subtitle D). Documentation that this information was provided orally and in writing is required.

New 26 TAC §304.301 and §304.302, outlining requirements for authorized providers.

CHAPTER 304. DIAGNOSTIC ASSESSMENT
SUBCHAPTER C. AUTHORIZED PROVIDERS
26 TAC §304.301, §304.302

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §304.301 outlines the educational qualifications as well as professional experience for those individuals identified as authorized providers who may conduct a DID at a LIDDA or an SSLC. The proposed new rule also includes a reference to those individuals classified as “certified authorized providers” who may also conduct a DID.
Proposed new §304.302 outlines the process to designate an employee or contractor of the LIDDA or SSLC who is not a licensed psychologist or physician as a certified authorized provider. The proposed new rule also describes the two levels of certified authorized providers.

New 26 TAC §§304.401 – 304.404, detailing the process and requirements for the determination of an intellectual disability.

CHAPTER 304. DIAGNOSTIC ASSESSMENT
SUBCHAPTER D. DETERMINATION OF INTELLECTUAL DISABILITY
26 TAC §§304.401 – 304.404

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new Chapter 304 of Title 26 of the Texas Administrative Code (TAC), including §§304.401, concerning Conducting a Determination of Intellectual Disability; 304.402, concerning The Determination of Intellectual Disability Report; 304.403, concerning Review and Endorsement of a Determination of Intellectual Disability Report; and 304.404, concerning Elements of a Transfer.

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §304.401 describes the process of completing a DID and the components included in this process.
Proposed new §304.402 describes the required information and elements to be incorporated in the DID reports. The proposed new rule also includes the timeframe by which an authorized provider must provide the written report to the person who requested the DID, which is within 30 days after completing the interview and assessment.
Proposed new §304.403 describes the process of requesting an endorsement of a DID or an endorsement of a private or school assessment report as a DID that reflects current functioning. The proposed new rule also requires that the LIDDA or SSLC inform the individual or LAR of the right to an administrative hearing to contest the determination of an intellectual disability.
Proposed new §304.404 outlines the process when an individual relocates from one local service area or SSLC to another local service area or SSLC. The sending LIDDA or SSLC must ensure certain documentation is provided to the receiving LIDDA or SSLC.

New 26 TAC §304.502 and §304.503, describing diagnostic assessment requirements concerning Autism Spectrum Disorder and related conditions.

CHAPTER 304. DIAGNOSTIC ASSESSMENT
SUBCHAPTER E. INTELLECTUAL DISABILITY AND RELATED CONDITIONS
26 TAC §304.502, §304.503

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §304.502 describes how a LIDDA may use information from the DID to assist in establishing the individual’s eligibility for certain Medicaid services based on the existence of a related condition on the current HHSC-approved list of related conditions. The proposed new rule also describes the required components that must be included in the DID report pertaining to the related condition diagnosis.
Proposed new §304.503 describes how an authorized provider may use information from the DID to assist in establishing the individual’s eligibility for LIDDA services based on the existence of Autism Spectrum Disorder (ASD). The proposed new rule also establishes the required components that must be included in the DID report pertaining to the ASD diagnosis.

New 26 TAC §306.1251, establishing rule flexibilities for Behavioral Health Providers in the event of a disaster.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER X. DISASTER RULE FLEXIBILITIES FOR BEHAVIORAL HEALTH PROVIDERS
26 TAC §306.1251

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §306.1251, concerning Disaster Rule Flexibilities for Community Behavioral Health Providers.

BACKGROUND AND JUSTIFICATION

HHSC adopts rules to establish requirements and flexibilities to protect public health and safety during a disaster declared by the Governor. The requirements established in these rules are effective in all Texas counties or in a particular Texas county or counties during an active state of disaster as declared pursuant to Texas Government Code §418.014. The purpose of the proposal is to allow HHSC the flexibility to waive certain requirements for the delivery of services in response to a declared disaster. This proposed new rule is based on the existing emergency rule created in Texas Administrative Code Title 26, Part 1, Chapter 306, Subchapter Z, §306.1351, relating to COVID-19 Flexibilities. This proposal creates a standing rule, allowing providers subject to the rule to operate with the same flexibilities afforded by the emergency rule and it ensures continuity of services for individuals receiving community-based behavioral health services.

SECTION-BY-SECTION SUMMARY

Proposed new §306.1251(a) establishes that in the event of a state of disaster, HHSC will waive the types of rules listed in subsection (b) until the state of disaster is terminated.
Proposed new §306.1251(b) identifies the types of rules HHSC will waive to the extent authorized under federal and state law as of the date of the state of disaster is declared. HHSC will waive rules that require providers to deliver certain services face-to-face or in-person contact, or in a specific physical space or on site. HHSC will also waive rules that require a child or adolescent participating in the Youth Empowerment Services Waiver Program to reside with their legally authorized representative to receive services; and rules that require staff training through face-to-face or in-person contact or for training to occur in a specific physical space or on site.
Proposed new §306.1251(c) requires providers subject to the rules to comply with all guidance on the application of the rules identified in subsection (b) published by HHSC, including policy guidance issued by HHSC’s Medicaid Services Department.
Proposed new §306.1251(d) requires that, pursuant to subsection (b), providers must ensure any method of contact complies with all applicable requirements related to security and privacy of information.

Adopted Rules Re:

Amending 26 TAC §§556.2, 556.3, 556.6, 556.9 to update training requirements for nurse aides.

CHAPTER 556. NURSE AIDES
26 TAC §§556.2, 556.3, 556.6, 556.9

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §556.2, concerning Definitions; §556.3, concerning Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements; §556.6, concerning Competency Evaluation Requirements; and §556.9, concerning Nurse Aide Registry and Renewal; in Title 26, Part 1, Chapter 556, Nurse Aides.

The amendments to §§556.2, 556.3, 556.6, and 556.9 are adopted with changes to the proposed text as published in the March 12, 2021, issue of the Texas Register (46 TexReg 1597). These rules will be republished.

BACKGROUND AND JUSTIFICATION

A NATCEP is a program approved by HHSC to train and evaluate an individual’s ability to work as a nurse aide in a nursing facility. Currently, all NATCEP training is provided in a classroom and clinical setting. The purpose of the adopted rules is to allow a NATCEP provider to offer certain components of required training online.

The rules respond to a critical shortage in trained nurse aides in nursing homes. External stakeholders, such as Texas Health Care Association and Leading Age, requested that HHSC allow NATCEP providers to offer online training opportunities for portions of the NATCEP classroom curriculum. This option is intended to increase the number of nurse aides qualified for employment in a nursing facility.

Due to the challenges presented by the COVID-19 pandemic and the need for greater awareness and emphasis on infection control, the adopted rules increase the number of hours of infection control training a NATCEP must provide and require all nurse aides to complete a course in infection control each year.

The rules implement legislative amendments to Texas Administrative Code §556.3(e)(3) to provide that HHSC does not approve a NATCEP offered by or in a facility if, within the previous two years, the facility has been assessed a civil money penalty of not less than $5,000, as adjusted annually for inflation under 45 Code of Federal Regulations (CFR), Part 102, for deficiencies in nursing facility standards. This change was made to link the dollar amount referenced in the rule to the amount specified by the Centers for Medicare and Medicaid Services, as adjusted annually for inflation.

In Addition Re:

Public Notice – Texas Managed Care Quality Strategy

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit to the Centers for Medicare & Medicaid Services (CMS) an updated Texas Managed Care Quality Strategy.

In accordance with 42 CFR §438.340, each State contracting with a Managed Care Organization (MCO) must draft and implement a written quality strategy for assessing and improving the quality of health care and services furnished by the MCO. The state must review and update the quality strategy as needed, but no less than once every three years. To comply with this requirement to update the strategy every three years, the strategy was updated and submitted to CMS in March 2021.

BACKGROUND AND JUSTIFICATION

HHSC has identified the need for changes to the strategy that was submitted to CMS in March 2021. The changes to the strategy can be found on pages four through six. The revised Quality Strategy adds objectives associated with each of the Quality Goals in Table 1. The March 2021 version only listed goals.

HHSC submits this revision to support its responses to CMS’s questions on several proposed directed payment programs for state fiscal year 2022.

PROPOSED UPDATE INFORMATION

The proposed updated Texas Managed Care Quality Strategy is available on the HHSC website, which can be viewed at this link: https://hhs.texas.gov/about-hhs/process-improvement/improving-services-texans/medicaid-chip-quality-efficiency-improvement/quality-strategy. For reference, the current Texas Managed Care Quality Strategy (last edited and submitted to CMS in March 2021) is also available via that link.

Public Notice: Texas State Plan Amendment for Event-based Rates for Potentially Preventable Readmissions

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment, transmittal number 21-0012, to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act. The proposed amendment is effective September 1, 2021.

BACKGROUND AND JUSTIFICATION

The purpose of this amendment is to revise HHSC’s potentially preventable events program for reimbursement reductions for eligible hospitals. With the revision, HHSC would no longer weight potentially preventable readmissions when calculating a hospital’s performance in relation to statewide norms.

The proposed amendment is estimated to result in an additional annual aggregate expenditure of $208,702 for federal fiscal year (FFY) 2022, consisting of $130,126 in federal funds and $78,576 in state general revenue. For FFY 2023, the estimated additional annual expenditure is $217,253, consisting of $131,938 in federal funds and $85,315 in state general revenue.

Rate Hearing. A public hearing was held on July 15, 2021, at 9:00 a.m. CST in a virtual setting based in Austin, Texas. Information about the proposed calculation change and the hearing can be found in the July 2, 2021, issue of the Texas Register at page 4047, which can be found at http://www.sos.state.tx.us/texreg/index.html.

PROPOSED AMENDMENT INFORMATION

Interested parties may obtain additional information and/or a free copy of the proposed amendment by contacting Holly R. Freed, State Plan Policy Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, TX 78711 or by e-mail at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposed amendment will be available for review at the local county offices of the Health and Human Services Commission.

Public Notice – Texas State Plan for Medical Assistance Amendment Effective September 1, 2021

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act. The proposed amendment is to be effective September 1, 2021.

BACKGROUND AND JUSTIFICATION

The purpose of the amendment is to update the current Texas Medicaid State Plan by modifying the Medicaid inpatient reimbursement rate setting process, primarily for rural hospitals. The amendment arranges sections by hospital type to enhance clarity, consistency, and specificity. The proposed amendment also includes language related to a Medicaid managed care minimum fee schedule for all rural hospitals.

The proposed amendment is estimated to result in no foreseeable implications relating to costs or revenues.

PROPOSED AMENDMENT INFORMATION

Interested parties may obtain additional information and/or a free copy of the proposed amendment by contacting Holly Freed, State Plan Team Lead, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; by telephone at (512) 428-1932; by facsimile at (512) 730-7472; or by e-mail at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposed amendment will be available for review at the local county offices of HHSC, (which were formerly the local offices of the Texas Department of Aging and Disability Services).

Department of Aging and Disability Services

Proposed Rules Re:

Repealing 40 TAC §§5.151, 5.153 – 5.158, 5.161 to allow for the adoption of updated rules concerning diagnostic assessments for intellectual disabilities.

CHAPTER 5. PROVIDER CLINICAL RESPONSIBILITIES–INTELLECTUAL DISABILITY SERVICES
SUBCHAPTER D. DIAGNOSTIC ASSESSMENT
40 TAC §§5.151, 5.153 – 5.158, 5.161

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §§531.0201 and 531.02011. Texas Government Code §531.0055 requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system. Rules of the former DADS codified in Title 40, Part 1 of the Texas Administrative Code (TAC) are being repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC.

Therefore, the Executive Commissioner of HHSC proposes the repeal of 40 TAC Part 1, Chapter 5 Provider Clinical Responsibilities–Intellectual Disability Services, Subchapter D Diagnostic Assessment, in its entirety, including §5.151 concerning Purpose, §5.153 concerning Definitions, §5.154 concerning Use of Information from a Diagnostic Assessment, §5.155 concerning Determination of Intellectual Disability (DID), §5.156 concerning Review and Endorsement of a DID, §5.157 concerning Autism Spectrum Disorder (ASD), §5.158 concerning Related Condition (RC), and §5.161 concerning Certified Authorized Provider. HHSC proposes new 26 TAC Part 1, Chapter 304, Diagnostic Assessment, elsewhere in this issue of the Texas Register.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to repeal 40 TAC Chapter 5, Subchapter D, Diagnostic Assessment. The new rules planned in 26 TAC Chapter 304 are substantially similar to the rules proposed for repeal.

SECTION-BY-SECTION SUMMARY

The proposed repeal of 40 TAC §§5.151, 5.153 – 5.158, and 5.161 allows new rules to be proposed in Title 26, Chapter 304.