Texas Register August 13, 2021 Issue: 46 Number: 33

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Executive Order GA-38
    - 1.0.1.1 Governor issues Executive Order GA-38 setting forth statewide requirements in response to COVID-19.
  - 1.0.2 Proclamation 41-3851
    - 1.0.2.1 Governor issues Proclamation 41-3851, renewing the disaster proclamation for all counties in Texas in response to COVID-19.
2 Texas Medical Board
- - 2.0.1 Emergency Rules Re:
    - 2.0.1.1 Amending 22 TAC §174.5 to allow physicians to use telemedicine to issue existing prescriptions for certain chronic pain patients.
    - 2.0.1.2 Amending 22 TAC §217.24 to allow APRNs to treat chronic pain with scheduled drugs for certain patients using telemedicine.
  - 2.0.2 Proposed Rules Re:
    - 2.0.2.1 Amending 22 TAC §174.5 to allow the use of telemedicine to issue prescriptions for certain chronic pain patients.
3 Texas Board of Nursing
- - 3.0.1 Emergency Rules Re:
    - 3.0.1.1 Amending 22 TAC §217.24 to allow APRNs to use telemedicine services to treat certain chronic pain patients.
  - 3.0.2 Proposed Rules Re:
    - 3.0.2.1 Amending 22 TAC §217.24 to permit APRNs to provide treatment for certain chronic pain patients using telemedicine.
4 Department of State Health Services
- - 4.0.1 Emergency Rules Re:
    - 4.0.1.1 Amending 25 TAC §97.7 to add COVID-19 to the list of diseases requiring exclusion from schools and to provide readmission criteria.
  - 4.0.2 Withdrawn Rules Re:
5 Health and Human Services Commission
6 Texas Behavioral Health Executive Council
- - 6.0.1 Proposed Rules Re:
    - 6.0.1.1 Amending 22 TAC §883.1 to modify late fees for license renewals.
  - 6.0.2 Withdrawn Rules Re:
    - 6.0.2.1 Withdrawing 22 TAC §883.1 relating to renewals.

The Governor

Executive Order GA-38

Governor issues Executive Order GA-38 setting forth statewide requirements in response to COVID-19.

The Governor of Texas, by virtue of the power and authority vested in him by the Constitution and laws of the State of Texas, does hereby order the following on a statewide basis effective immediately:

To ensure the continued availability of timely information about COVID-19 testing and hospital bed capacity that is crucial to efforts to cope with the COVID-19 disaster, the following requirements apply:
a. All hospitals licensed under Chapter 241 of the Texas Health and Safety Code, and all Texas state-run hospitals, except for psychiatric hospitals, shall submit to the Texas Department of State Health Services (DSHS) daily reports of hospital bed capacity, in the manner prescribed by DSHS. DSHS shall promptly share this information with the Centers for Disease Control and Prevention (CDC).
b. Every public or private entity that is utilizing an FDA-approved test, including an emergency use authorization test, for human diagnostic purposes of COVID-19, shall submit to DSHS, as well as to the local health department, daily reports of all test results, both positive and negative. DSHS shall promptly share this information with the CDC.
To ensure that vaccines continue to be voluntary for all Texans and that Texans’ private COVID-19-related health information continues to enjoy protection against compelled disclosure, in addition to new laws enacted by the legislature against socalled “vaccine passports,” the following requirements apply:
a. No governmental entity can compel any individual to receive a COVID-19 vaccine administered under an emergency use authorization. I hereby suspend Section 81.082(f)(1) of the Texas Health and Safety Code to the extent necessary to ensure that no governmental entity can compel any individual to receive a COVID-19 vaccine administered under an emergency use authorization.
b. State agencies and political subdivisions shall not adopt or enforce any order, ordinance, policy, regulation, rule, or similar measure that requires an individual to provide, as a condition of receiving any service or entering any place, documentation regarding the individual’s vaccination status for any COVID-19 vaccine administered under an emergency use authorization. I hereby suspend Section 81.085(i) of the Texas Health and Safety Code to the extent necessary to enforce this prohibition. This paragraph does not apply to any documentation requirements necessary for the administration of a COVID-19 vaccine.
c. Any public or private entity that is receiving or will receive public funds through any means, including grants, contracts, loans, or other disbursements of taxpayer money, shall not require a consumer to provide, as a condition of receiving any service or entering any place, documentation regarding the consumer’s vaccination status for any COVID-19 vaccine administered under an emergency use authorization. No consumer may be denied entry to a facility financed in whole or in part by public funds for failure to provide documentation regarding the consumer’s vaccination status for any COVID-19 vaccine administered under an emergency use authorization.
d. Nothing in this executive order shall be construed to limit the ability of a nursing home, state supported living center, assisted living facility, or long-term care facility to require documentation of a resident’s vaccination status for any COVID-19 vaccine.
e. This paragraph number 2 shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster. I hereby suspend Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with this executive order.
To ensure the ability of Texans to preserve livelihoods while protecting lives, the following requirements apply:
a. There are no COVID-19-related operating limits for any business or other establishment.
b. In areas where the COVID-19 transmission rate is high, individuals are encouraged to follow the safe practices they have already mastered, such as wearing face coverings over the nose and mouth wherever it is not feasible to maintain six feet of social distancing from another person not in the same household, but no person may be required by any jurisdiction to wear or to mandate the wearing of a face covering.
c. In providing or obtaining services, every person (including individuals, businesses, and other legal entities) is strongly encouraged to use good-faith efforts and available resources to follow the Texas Department of State Health Services (DSHS) health recommendations, found at www.dshs.texas.gov/coronavirus.
d. Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities should follow guidance from the Texas Health and Human Services Commission (HHSC) regarding visitations, and should follow infection control policies and practices set forth by HHSC, including minimizing the movement of staff between facilities whenever possible.
e. Public schools may operate as provided by, and under the minimum standard health protocols found in, guidance issued by the Texas Education Agency. Private schools and institutions of higher education are encouraged to establish similar standards.
f. County and municipal jails should follow guidance from the Texas Commission on Jail Standards regarding visitations.
g. As stated above, business activities and legal proceedings are free to proceed without COVID-19-related limitations imposed by local governmental entities or officials. This paragraph number 3 supersedes any conflicting local order in response to the COVID-19 disaster, and all relevant laws are suspended to the extent necessary to preclude any such inconsistent local orders. Pursuant to the legislature’s command in Section 418.173 of the Texas Government Code and the State’s emergency management plan, the imposition of any conflicting or inconsistent limitation by a local governmental entity or official constitutes a “failure to comply with” this executive order that is subject to a fine up to $1,000.
To further ensure that no governmental entity can mandate masks, the following requirements shall continue to apply:
a. No governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering; provided, however,that:
i. state supported living centers, government-owned hospitals, and government-operated hospitals may continue to use appropriate policies regarding the wearing of face coverings; and
ii. the Texas Department of Criminal Justice, the Texas Juvenile Justice Department, and any county and municipal jails acting consistent with guidance by the Texas Commission on Jail Standards may continue to use appropriate policies regarding the wearing of face coverings.
b. This paragraph number 4 shall supersede any face-covering requirement imposed by any local governmental entity or official, except as explicitly provided in subparagraph number 4.a. To the extent necessary to ensure that local governmental entities or officials do not impose any such face-covering requirements, I hereby suspend the following:
i. Sections 418.1015(b) and 418.108 of the Texas Government Code;
ii. Chapter 81, Subchapter E of the Texas Health and Safety Code;
iii. Chapters 121, 122, and 341 of the Texas Health and Safety Code;
iv. Chapter 54 of the Texas Local Government Code; and
v. Any other statute invoked by any local governmental entity or official in support of a face-covering requirement.
Pursuant to the legislature’s command in Section 418.173 of the Texas Government Code and the State’s emergency management plan, the imposition of any such face-covering requirement by a local governmental entity or official constitutes a “failure to comply with” this executive order that is subject to a fine up to $1,000.
c. Even though face coverings cannot be mandated by any governmental entity, that does not prevent individuals from wearing one if they choose.
To further ensure uniformity statewide:
a. This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts services allowed by this executive order or allows gatherings restricted by this executive order. Pursuant to Section 418.016(a) of the Texas Government Code, I hereby suspend Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.
b. Confinement in jail is not an available penalty for violating this executive order. To the extent any order issued by local officials in response to the COVID-19 disaster would allow confinement in jail as an available penalty for violating a COVID-19-related order, that order allowing confinement in jail is superseded, and I hereby suspend all relevant laws to the extent necessary to ensure that local officials do not confine people in jail for violating any executive order or local order issued in response to the COVID-19 disaster.
This executive order supersedes all pre-existing COVID-19-related executive orders and rescinds them in their entirety, except that it does not supersede or rescind Executive Orders GA-13 or GA-37. This executive order shall remain in effect and in full force unless it is modified, amended, rescinded, or superseded by the governor. This executive order may also be amended by proclamation of the governor.

Proclamation 41-3851

Governor issues Proclamation 41-3851, renewing the disaster proclamation for all counties in Texas in response to COVID-19.

In accordance with the authority vested by Section 418.014 of the Texas Government Code, the Governor does hereby renew the disaster proclamation for all counties in Texas.

Pursuant to Section 418.017, the Governor authorizes the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.

Pursuant to Section 418.016, any regulatory statute prescribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforcement of any state statute or administrative rule regarding contracting or procurement would impede any state agency’s emergency response that is necessary to cope with this declared disaster, the Governor hereby suspends such statutes and rules for the duration of this declared disaster for that limited purpose.

Texas Medical Board

Emergency Rules Re:

Amending 22 TAC §174.5 to allow physicians to use telemedicine to issue existing prescriptions for certain chronic pain patients.

CHAPTER 174. TELEMEDICINE
SUBCHAPTER A. TELEMEDICINE
22 TAC §174.5

OVERVIEW

The Texas Medical Board (Board) adopts, on an emergency basis, amendments to 22 TAC §174.5, effective July 31, 2021, at 12:01 a.m.

The emergency amendment would allow physicians to utilize telemedicine to continue issuing previous prescription(s) for scheduled medications to established chronic pain patients, if the physician has, within the past 90 days, seen a patient in-person or via a telemedicine visit using two-way audio and video communication.

BACKGROUND AND JUSTIFICATION

On March 13, 2020, the Governor of Texas certified COVID-19 as posing an imminent threat of disaster to the public health and safety and declared a state of disaster in all counties of Texas. The utilization of telemedicine to prescribe scheduled drugs for the treatment of chronic pain is needed to protect public health and curb the spread of COVID-19, while ensuring continuity of care for chronic pain patients and the avoidance of potential adverse consequences associated with the abrupt cessation of pain medicine. On June 30, 2021, the Board adopted, on an emergency basis, amendments to 22 TAC §174.5. Such rule is set to expire at 11:59 p.m. on July 30, 2021.

Therefore, the emergency amendment to §174.5(e) is immediately necessary to help the state’s physicians, physician assistants and other health care professionals continue to mitigate the risk of exposure to COVID-19 and provide necessary medical services to related to issuance of prescriptions including controlled substances for patients. Pursuant to the Governor’s declaration of disaster issued on March 13, 2020, related to COVID-19, physicians can continue the treatment of chronic pain with scheduled drugs for established patients after having an in-person or two-way audio and video communications telemedicine medical services within the last 90 days.

Pursuant to Section 2001.034 and 2001.036(a)(2) of the Texas Government Code, the amendment is adopted on an emergency basis and with an expedited effective date because an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. The emergency amendment shall be in effect for only 75 days or the duration of the time period that the Governor’s disaster declaration of March 13, 2020 in response to the COVID-19 pandemic is in effect, whichever is shorter, pursuant to Section 2001.034 of the Texas Government Code.

Amending 22 TAC §217.24 to allow APRNs to treat chronic pain with scheduled drugs for certain patients using telemedicine.

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE
22 TAC §217.24

OVERVIEW

The Texas Board of Nursing (Board) adopts emergency amendments to §217.24(e), relating to Telemedicine Medical Service Prescriptions, pursuant to a finding of imminent peril to the public health, safety, and welfare, which requires adoption in fewer than thirty (30) days’ notice, as authorized by Tex. Gov’t. Code §2001.034.

BACKGROUND AND JUSTIFICATION

The adoption of emergency amendments to §217.24(e) is immediately necessary to allow APRNs to provide necessary treatment to established patients with chronic pain while mitigating the risk of exposure to COVID-19. Under the emergency amendments, the treatment of chronic pain with scheduled drugs through the use of telemedicine medical services by any means other than via audio and video two-way communication is prohibited, unless certain conditions are met. First, a patient must be an established chronic pain patient of the APRN. Second, the patient must be receiving a prescription that is identical to a prescription issued at the previous visit. Third, the patient must have been seen by the prescribing APRN or physician or health professional as defined in Tex. Occ. Code §111.001(1) in the last 90 days, either in-person or via telemedicine using audio and video two-way communication. These requirements are consistent with the rules adopted by the Texas Medical Board at 22 Texas Administrative Code §174.5 (relating to Issuance of Prescriptions) on an emergency basis and the provisions of federal law that currently permit the use of telemedicine medical services for the prescription of controlled substances during the COVID-19 pandemic.

Further, an APRN must exercise appropriate professional judgment in determining whether to utilize telemedicine medical services for the treatment of chronic pain with controlled substances. In order to ensure that telemedicine medical services are appropriate for the APRN to use, the emergency amendments require an APRN to give due consideration to factors that include, at a minimum, the date of the patient’s last in-person visit, patient co-morbidities, and occupational related COVID-19 risks. These are not the sole, exclusive, or exhaustive factors an APRN should consider under this rule. Further, the emergency amendments only apply to those APRNs whose delegating physicians permit them to issue refills for patients, and the refills are limited to controlled substances contained in Schedules III through V only. If a patient is treated for chronic pain with scheduled drugs through the use of telemedicine medical services as permitted by this rule, the medical records must document the exception and the reason that a telemedicine visit was conducted instead of an in-person visit.

The remaining adopted changes make conforming changes to the definitions of the terms acute pain and chronic pain, consistent with the definition used by the Texas Medical Board, in 22 Texas Administrative Code §170.2(2) and (4) (relating to Definitions).

Proposed Rules Re:

Amending 22 TAC §174.5 to allow the use of telemedicine to issue prescriptions for certain chronic pain patients.

CHAPTER 174. TELEMEDICINE
SUBCHAPTER A. TELEMEDICINE
22 TAC §174.5

OVERVIEW

The Texas Medical Board (Board) proposes amendments to 22 TAC §174.5, relating to the Issuance of Prescriptions.

The amendments to §174.5(e) allow physicians to utilize telemedicine to continue issuing previous prescription(s) for scheduled medications to established chronic pain patients, if the physician has, within the past 90 days, seen a patient in-person or via a telemedicine visit using two-way audio and video communication. The amendments will consistently and conveniently provide patients access to schedule drugs needed to ensure on-going treatment of chronic pain and avoid potential adverse consequences associated with the abrupt cessation of pain medication.

BACKGROUND AND JUSTIFICATION

Scott Freshour, General Counsel for the Texas Medical Board, has determined that, for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the proposed amendments will be to allow physicians and other health care professionals to provide necessary medical services to related to issuance of prescriptions including controlled substances for patients. The amendments eliminate the required travel to the physician or healthcare provider for an in-person visit each time the patient needs a refill for pain medication and improves the overall continuity of care for these patients, while still meeting the standard of care and complying with state and federal law.

Texas Board of Nursing

Emergency Rules Re:

Amending 22 TAC §217.24 to allow APRNs to use telemedicine services to treat certain chronic pain patients.

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE
22 TAC §217.24

OVERVIEW

BACKGROUND AND JUSTIFICATION

Proposed Rules Re:

Amending 22 TAC §217.24 to permit APRNs to provide treatment for certain chronic pain patients using telemedicine.

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE
22 TAC §217.24

OVERVIEW

The Texas Board of Nursing (Board) proposes amendments to 22 TAC §217.24(e), relating to Telemedicine Medical Service Prescriptions. The amendments are being proposed under the authority of the Occupations Code §301.151.

BACKGROUND AND JUSTIFICATION

On March 13, 2020, the Governor of the State of Texas certified COVID-19 as posing an imminent threat of disaster to the public health and safety and declared a state of disaster in all counties of Texas. This declaration has been renewed each month thereafter, the most recent renewal taking effect July 30, 2021. On March 23, 2020, the Office of the Governor granted a waiver of 22 Texas Administrative Code §217.24(e), which prohibits an advanced practice registered nurse (APRN) from treating chronic pain with scheduled drugs through the use of telemedicine medical services, unless otherwise permitted under federal and state law. The waiver, however, expired on June 6, 2020.

The Board held a public meeting on June 8, 2020, to consider the adoption of an emergency rule to permit APRNs to treat chronic pain with scheduled drugs through the use of telemedicine medical services under certain conditions during the COVID-19 pandemic. At the conclusion of the meeting, the Board voted to adopt emergency amendments to 22 Texas Administrative Code §217.24(e).

Subsequently, the Board found that the continued effects of the COVID-19 pandemic necessitated the continuation of emergency amendments to §217.24(e) and re-adopted emergency amendments to the section several times, the last adoption taking effect on August 1, 2021. During its most recent public meeting on July 30, 2021, the Board determined that permanent rule amendments to §217.24(e), consistent with those amendments adopted on an emergency basis during the pandemic, should also be considered due to the continuation of the pandemic and recent increases in the number of new COVID-19 cases throughout the state. Further, the Board determined it would routinely evaluate the continued need for the permanent rule as the pandemic progresses to ensure ongoing compliance with state and federal law and to determine when, and if, the necessity of the permanent rule ceases to exist.

SECTION-BY-SECTION SUMMARY

The proposed amendments to §217.24(e) are necessary to allow APRNs to provide necessary treatment to established patients with chronic pain while mitigating the risk of exposure to COVID-19. Under the proposed amendments, the treatment of chronic pain with scheduled drugs through the use of telemedicine medical services by any means other than via audio and video two-way communication is prohibited, unless certain conditions are met. First, a patient must be an established chronic pain patient of the APRN. Second, the patient must be receiving a prescription that is identical to a prescription issued at the previous visit. Third, the patient must have been seen by the prescribing APRN or physician or health professional as defined in Tex. Occ. Code §111.001(1) in the last 90 days, either in-person or via telemedicine using audio and video two-way communication.

These requirements are consistent with the rules adopted by the Texas Medical Board at 22 Texas Administrative Code §174.5 (relating to Issuance of Prescriptions) on an emergency basis, effective July 31, 2021, and being proposed by the Texas Medical Board as a permanent rule, as well as the provisions of federal law that currently permit the use of telemedicine medical services for the prescription of controlled substances during the COVID-19 pandemic.

Further, an APRN must exercise appropriate professional judgment in determining whether to utilize telemedicine medical services for the treatment of chronic pain with controlled substances. In order to ensure that telemedicine medical services are appropriate for the APRN to use, the adopted rule requires an APRN to give due consideration to factors that include, at a minimum, the date of the patient’s last in-person visit, patient co-morbidities, and occupational related COVID-19 risks. These are not the sole, exclusive, or exhaustive factors an APRN should consider under this rule. Further, the proposed amendments only apply to those APRNs whose delegating physicians permit them to issue re-fills for patients, and the refills are limited to controlled substances contained in Schedules III through V only. If a patient is treated for chronic pain with scheduled drugs through the use of telemedicine medical services as permitted by this rule, the medical records must document the exception and the reason that a telemedicine visit was conducted instead of an in-person visit.

The remaining proposed changes make conforming changes to the definitions of the terms acute pain and chronic pain, consistent with the definition used by the Texas Medical Board, in 22 Texas Administrative Code §170.2(2) and (4) (relating to Definitions).

Department of State Health Services

Emergency Rules Re:

Amending 25 TAC §97.7 to add COVID-19 to the list of diseases requiring exclusion from schools and to provide readmission criteria.

CHAPTER 97. COMMUNICABLE DISEASES
SUBCHAPTER A. CONTROL OF COMMUNICABLE DISEASES
25 TAC §97.7

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts on an emergency basis in Title 25 Texas Administrative Code, Chapter 97 Communicable Diseases, an amendment to §97.7, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19 among children returning to school.

HHSC is adopting an emergency rule amendment to §97.7 to add the COVID-19 disease to the list of diseases requiring exclusion from schools and to provide readmission criteria. The purpose of this amendment is to identify COVID-19 as a disease that requires exclusion from school and to provide readmission criteria.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code §2001.034, HHSC 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 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. DSHS and HHSC accordingly find that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this amendment to §97.7.

Withdrawn Rules Re:

Withdrawing 25 TAC §131.1 and §131.2 regarding general provisions for freestanding emergency medical care facilities.

CHAPTER 131. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER A GENERAL PROVISIONS
25 TAC §131.1, §131.2

Proposed repeal of §131.1 and §131.2, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 517), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 25 TAC §§131.21 – 131.31 regarding licensing requirements for freestanding emergency medical care facilities.

CHAPTER 131. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER B. LICENSING REQUIREMENTS
25 TAC §§131.21 – 131.31

Proposed repeal of §§131.21 – 131.31, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 517), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 25 TAC §§131.41 – 131.68 regarding operational requirements for freestanding emergency medical care facilities.

CHAPTER 131. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
25 TAC §§131.41 – 131.68

Proposed repeal of §§131.41 – 131.68, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 517), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 25 TAC §131.81 and §131.82 regarding inspection and investigation procedures for freestanding emergency medical care facilities.

CHAPTER 131. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER D. INSPECTION AND INVESTIGATION PROCEDURES
25 TAC §131.81, §131.82

Proposed repeal of §131.81 and §131.82, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 517), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 25 TAC §§131.101 – 131.109 regarding enforcement provisions regarding freestanding emergency medical care facilities.

CHAPTER 131. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER E. ENFORCEMENT
25 TAC §§131.101 – 131.109

Proposed repeal of §§131.101 – 131.109, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 517), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 25 TAC §§131.121 – 131.123 regarding fire prevention and safety requirements for freestanding emergency medical care facilities.

CHAPTER 131. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER F. FIRE PREVENTION AND SAFETY REQUIREMENTS
25 TAC §§131.121 – 131.123

Proposed repeal of §§131.121 – 131.123, published in the January 22, 2021, issue of the Texas Register (46 TexReg 517), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 25 TAC §§131.141 – 131.148 regarding construction requirements for freestanding emergency medical care facilities.

CHAPTER 131. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER G. PHYSICAL PLANT AND CONSTRUCTION REQUIREMENTS
25 TAC §§131.141 – 131.148

Proposed repeal of §§131.141 – 131.148, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 517), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §261.352, establishing payment requirements for reserving a bed in a facility after taking COVID-19 therapeutic leave.

CHAPTER 261. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS (ICF/IID) PROGRAM–CONTRACTING
SUBCHAPTER K. EMERGENCY RULES FOR THE ICF/IID PROGRAM
26 TAC §261.352

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 261, Intermediate Care Facilities For Individuals With An Intellectual Disability Or Related Conditions (ICF/IID) Program–Contracting, new §261.352, concerning an emergency rule related to leave during the COVID-19 pandemic.

HHSC is adopting an emergency rule to pay a program provider for reserving a bed in a facility for an individual who takes COVID-19 therapeutic leave to reduce the risk of COVID-19 transmission. The emergency rule sets forth the requirements that a program provider must meet to receive payment (sometimes referred to as a bed hold payment) for an individual’s COVID-19 therapeutic leave. The emergency rule allows a program provider to request payment for COVID-19 therapeutic leave by making an attestation regarding its net profit, which was not allowed under 26 TAC §261.351, effective January 29, 2021.

The emergency rule provides that HHSC recoups payments from the program provider if HHSC determines the program provider did not comply with the rule or makes an attestation that is inaccurate.

BACKGROUND AND JUSTIFICATION

As authorized by Government Code §2001.034, HHSC 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 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 §261.352, Emergency Rule Related to Leave During the COVID-19 Pandemic.

Proposed Rules Re:

Amending 1 TAC §355.727 to update payment methods for Home and Community-Based Services Supervised Living and Residential Support Services.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER F. REIMBURSEMENT METHODOLOGY FOR PROGRAMS SERVING PERSONS WITH MENTAL ILLNESS OR INTELLECTUAL OR DEVELOPMENTAL DISABILITY
1 TAC §355.727

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.727, concerning Add-on Payment Methodology for Home and Community-Based Services Supervised Living and Residential Support Services.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to extend the period in which add-on payments for Home and Community-based Services Waiver (HCS) Supervised Living and Residential Support Services (SL/RSS) are effective.

The proposal is necessary to comply with 2022-23 General Appropriations Act, Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, HHSC, Rider 30), which requires HHSC to maintain rate increases authorized by the 2020-21 General Appropriations Act, House Bill 1, 86th Legislature, Regular Session, 2019 (Article II, HHSC, Rider 44).

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.727(b) revises the last date in which HHSC will pay an add-on to the direct care portion of the SL/RSS rates from August 31, 2021, to August 31, 2023.

The proposed amendment to §355.727(c)(1) revises the period in which providers may be required to submit cost reports in addition to other reporting requirements. This proposed amendment corresponds with the date revision in the proposed change to subsection (b). The proposed amendment to §355.727(c)(1) also revises the name of HHSC Rate Analysis to reflect the new name of the department, which is the HHSC Provider Finance Department.

New 1 TAC §355.7201, updating requirements for COVID-19 funding for health care institutions.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER I. REPORTING
1 TAC §355.7201

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Texas Administrative Code, Title 1, Part 15, Chapter 355, new Subchapter I, §355.7201, concerning Novel Coronavirus (COVID-19) Fund Reporting.

BACKGROUND AND PURPOSE

The proposal is necessary to comply with the 2022-23 General Appropriations Act, Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, HHSC, Rider 143) and S.B. 809, 87th Legislature, Regular Session, 2021.

The proposed new rule will outline definitions, reporting requirements, guidelines and procedures for health care institutions, as defined by Civil Practice and Remedies Code §74.001, including certain hospitals and nursing facilities, to report received federal COVID-19 funding. The COVID funding includes federal money received under the Coronavirus Aid, Relief, and Economic Security Act (15 U.S.C. §9001 et seq.), the Consolidated Appropriations Act, 2021 (Pub. L. No. 116-260), and the American Rescue Plan Act of 2021 (Pub. L. No. 117-2).

The proposed new rule outlines penalties for providers who fail to submit the required reports, in alignment with the provisions of S.B. 809 and Rider 143.

HHSC will compile and analyze the data and submit required legislative reports. S.B. 809 requires quarterly reports and Rider 143 requires HHSC to submit reports on December 1st and June 1st of each fiscal year. Appropriations in Strategy A.2.4, Nursing Facility Payments, for fiscal year 2023 are contingent on the submission of the reports due December 1, 2021 and June 1, 2022.

The required reporting for both the providers and HHSC is anticipated to terminate by September 1, 2023.

SECTION-BY-SECTION SUMMARY

Proposed new §355.7201(a) provides an introduction to the section and explains the requirement to collect and compile legislatively required reports pertaining to the COVID-19 federal funding.
Proposed new §355.7201(b) provides the applicable terms used in the section which includes “HHSC” and “health care institutions.”
Proposed new §355.7201(c) lists the institutions that are required to submit the monthly reports to HHSC. This includes all institutions that are defined as a health care institution by Civil Practice and Remedies Code§74.001.
Proposed new §355.7201(d) describes the reporting requirements of health care institutions, which include moneys received under the Coronavirus Aid, Relief, and Economic Security Act (15 U.S.C. §9001 et seq.), the Consolidated Appropriations Act, 2021 (Pub. L. No. 116-260), and the American Rescue Plan Act of 2021 (Pub. L. No. 117-2).
Proposed new §355.7201(e) outlines the frequency of reporting for the health care institutions. This includes monthly reports with the initial report due by October 1, 2021. The language further provides that HHSC may grant providers an extension, upon their request.
Proposed new §355.7201(f) outlines when HHSC will submit HHSC’s legislatively-mandated reports based on the compiled monthly reports submitted by the institutions.
Proposed new §355.7201(g) details the potential penalties for providers who fail to submit the required reports.
Proposed new §355.7201(h) details the duration of the reporting requirements, which ends on September 1, 2023, or as specified by HHSC.

Amending 1 TAC §355.8061 to clarify rules relating to outpatient hospital reimbursements.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 4. MEDICAID HOSPITAL SERVICES
1 TAC §355.8061

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.8061, concerning Outpatient Hospital Reimbursement.

BACKGROUND AND JUSTIFICATION

The purpose of the amendment is to comply with Senate Bill (S.B.) 1 , Article II, HHSC, Rider 8(f), 87th Legislature, Regular Session 2021, and to make other amendments to enhance clarity, consistency, and specificity. HHSC is required by S.B. 1 to allocate certain funds appropriated to provide an increase to outpatient reimbursement rates for rural hospitals. HHSC proposes an increase to outpatient services reimbursement by removing the cap that was established September 1, 2013, and applying a percentage increase to the cost to charge ratios for rural hospitals.

The proposed amendment will also eliminate the cost settlement of payments to maintain the level of payment directed by the rider. Rider 8 states that reimbursement for outpatient emergency department services which do not qualify as emergency visits may not exceed 65 percent of cost. Therefore, HHSC proposes a decrease in the allowable charges to 55 percent for these services to accommodate the increase in cost to charge ratios and retain the payments below 65 percent of cost.

Pursuant to S.B. 170, 86th Legislature, Regular Session, 2019 and S.B. 1621, 86th Legislature, Regular Session, 2019, HHSC’s managed care contracts require managed care organizations to reimburse rural hospitals using a minimum fee schedule for services delivered through the Medicaid managed care program. The proposed amendment adds subsection (e), requiring a Medicaid minimum fee schedule for all rural hospitals, to conform the rule to the current law as well.

In addition, HHSC proposes to explain the cost to charge ratio (CCR) rate setting process by including a section specific to rural hospitals.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.8061(a) adds two clarifying edits.
The proposed amendment to §355.8061(b)(2) adds “non-rural” to be specific about the outpatient interim rate determination for non-rural hospitals and the “default” interim rate.
Proposed new paragraph §355.8061(b)(3) specifies the outpatient interim rate determination and claim reimbursement for rural hospitals. New subparagraph (D) eliminates cost settlement of outpatient services for rural hospitals.
Proposed new subsection §355.8061 creates new subsection (e) to clarify the minimum fee schedule requirement for Managed Care Organizations.

Adopted Rules Re:

Amending 1 TAC §353.1302 and §353.1304 to adjust certain funding initiatives for nursing facilities.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES
1 TAC §353.1302, §353.1304

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §353.1302, concerning Quality Incentive Payment Program for Nursing Facilities on or after September 1, 2019; and §353.1304, concerning Quality Metrics for the Quality Incentive Payment Program for Nursing Facilities on or after September 1, 2019. The sections are adopted without changes to the proposed text as published in the May 28, 2021, issue of the Texas Register (46 Tex Reg 3333). The rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment is necessary to implement changes to the Quality Incentive Payment Program (QIPP) quality metrics that HHSC may select for each program year as well as certain component funding allocations begining in program year five (i.e., September 1, 2021 through August 31, 2022).

Section 353.1302 is amended to adjust QIPP Component 2 and Component 3 funding allocations as follows: increase the allocation percentage from 30 percent to 40 percent in Component 2 (paid monthly); and decrease the allocation percentage from 70 percent to 60 percent in Component 3 (paid quarterly).

The additional amendments discontinue an unnecessary requirement, provide increased clarity, and ensure that the language in this section corresponds to similar language in other sections of Subchapter O.

Section 353.1304 is amended to remove set types of quality metrics and related performance requirements for each program year in favor of a public notice and hearing process. This change allows the program to be adapted on an annual basis to ensure quality objectives are continually improved. This amendment also clarifies HHSC’s validation requirements for reviews of self-reported data in the program.

Repealing 26 TAC, Chapter 553 to allow for the adoption of updated licensing standards for assisted living facilities.

TITLE 26. HEALTH AND HUMAN SERVICES
PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts the repeal of §§553.1 – 553.6, 553.11 – 553.22, 553.41 – 553.44, 553.51, 553.53, 553.54, 553.81 – 553.83, 553.102, 553.103, 553.105, 553.106, 553.123 – 553.129, 553.151, 553.152, 553.201 – 553.220, 553.251 – 553.267, 553.301, 553.302, 553.351 – 553.374, 553.401, 553.402, 553.451 – 553.456, 553.501 – 553.506, 553.551, 553.601, and 553.801 in Title 26, Texas Administrative Code (TAC), Chapter 553, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND JUSTIFICATION

The repeals and new rules are necessary to reorganize the chapter, in order to facilitate easier navigation of the rules and to comply with changes to Texas Health and Safety Code, Chapters 81 and 247, by House Bill (H.B.) 823, 1848, and 3329, all enacted during the 86th Legislature, Regular Session, 2019. H.B. 823 requires a process for applicants for an assisted living facility license to obtain an expedited on-site health inspection not later than 21 days after the date of the request. H.B. 1848 requires an assisted living facility’s infection prevention and control program to incorporate monitoring of key infectious agents, including multidrug-resistant organisms and procedures for making rapid influenza diagnostic tests available to facility residents. H.B. 3329 amends the definition of an assisted living facility to include that it may provide health maintenance activities, as defined by the Texas Board of Nursing.

The new rules update the licensure process to reflect the transition from paper applications to the use of the online licensure portal called Texas Unified Licensure Information Portal, clarify other processes relating to licensure, change the agency’s name from Department of Aging and Disability Services (DADS) and Department of Health Services (DHS) to Texas Health and Human Services Commission (HHSC) throughout the chapter, and update rule references throughout the chapter as a result of the administrative transfer of the chapter from 40 TAC Chapter 92 to 26 TAC Chapter 553 in May 2019.

Adopting new 26 TAC, Chapter 553 to establish updated licensing standards for assisted living facilities.

TITLE 26. HEALTH AND HUMAN SERVICES
PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §§553.1, 553.3, 553.5, 553.7, 553.9, 553.17, 553.19, 553.21, 553.23, 553.25, 553.27, 553.29, 553.31, 553.33, 553.35, 553.37, 553.39, 553.41, 553.43, 553.47, 553.253, 553.255, 553.257, 553.259, 553.261, 553.263, 553.265, 553.267, 553.269, 553.271, 553.272, 553.273, 553.275, 553.301, 553.303, 553.305, 553.307, 553.309, 553.311, 553.327, 553.329, 553.331, 553.333, 553.335, 553.337, 553.351, 553.353, 553.401, 553.403, 553.405, 553.407, 553.409, 553.411, 553.513, 553.415, 553.417, 553.419, 553.421, 553.423, 553.425, 553.427, 553.429, 553.431, 553.433, 553.435, 553.437, 553.439, 553.451, 553.453, 553.455, 553.457, 553.459, 553.461, 553.463, 553.465, 553.467, 553.469, 553.471, 553.473, 553.475, 553.477, 553.479, 553.481, 553.483, 553.501, 553.503, 553.551, 553.553, 553.555, 553.557, 553.559, 553.561, 553.563, 553.565, 553.567, 553.569, 553.571, 553.573, 553.575, 553.577, 553.579, 553.581, 553.583, 553.585, 553.587, 553.589, 553.591, 553.593, 553.595, 553.597, 553.601, 553.603, 553.651, 553.653, 553.655, 553.657, 553.659, 553.661, 553.701, 553.703, 553.705, 553.707, 553.709, 553.711, 553.751, and 553.801 in Title 26, Texas Administrative Code (TAC), Chapter 553, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND JUSTIFICATION

Texas Behavioral Health Executive Council

Proposed Rules Re:

Amending 22 TAC §883.1 to modify late fees for license renewals.

CHAPTER 883. RENEWALS
SUBCHAPTER A. GENERAL PROVISIONS
22 TAC §883.1

The Texas Behavioral Health Executive Council proposes amendments to 22 TAC §883.1, relating to Renewal of a License.

The proposed amendment is intended to modify the assessment of late fees such that licensees need only pay a late renewal fee for late renewals, rather than a late fee in addition to the standard renewal fee.

Withdrawn Rules Re:

Withdrawing 22 TAC §883.1 relating to renewals.

CHAPTER 883. RENEWALS
SUBCHAPTER A. GENERAL PROVISIONS
22 TAC §883.1

The Texas Behavioral Health Executive Council withdraws the proposed amended §883.1 which appeared in the June 18, 2021, issue of the Texas Register (46 Tex Reg 3698).