8 Jan 2021

Texas Register January 8, 2021 Volume: 46 Number: 2

by | posted in: State Board of Dental Examiners, Texas Behavioral Health Executive Council, Texas Department of Licensing and Regulation, Texas Department of State Health Services, Texas Department on Aging and Disability Services, Texas Health and Human Services Commission, Texas Medical Board |

Texas Register Table of Contents

Texas Behavioral Health Executive Council

 

Notices

RQ-0391-KP: Request for opinion on the Council’s authority to adopt a rule prohibiting certain discriminatory conduct by licensed social workers

REQUESTOR Mr. Darrel D. SpinksExecutive DirectorTexas Behavioral Health Executive Council333 Guadalupe, Suite 3-900Austin, Texas 78701ISSUE Re: Authority of the Behavioral Health Executive Council to adopt a rule prohibiting certain discriminatory conduct by licensed social workers (RQ-0391-KP)TIMELINEBriefs requested by January 15, 2021

Texas Medical Board

Emergency Rule

Amending 22 TAC §174.5 to allow physicians to issue prescription refills for certain chronic pain patients using telemedicine

CHAPTER 174. TELEMEDICINESUBCHAPTER A. TELEMEDICINE22 TAC §174.5OVERVIEWThe Texas Medical Board (Board) adopts, on an emergency basis, amendments to 22 TAC §174.5, effective January 2, 2021, at 12:01 a.m.The emergency amendment allows physicians to utilize telemedicine to issue refill prescriptions 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, 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. On March 19, 2020, the Texas Governor issued a waiver suspending the strict enforcement of §174.5(e)(2)(A) which generally prohibits the utilization of telemedicine to prescribe scheduled drugs for the treatment of chronic pain. The waiver was issued in order to protect public health and curb the spread of COVID-19 by providing 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. On December 29, 2020, the Board adopted, on an emergency basis, amendments to 22 TAC §174.5. This rule is set to expire at 11:59 p.m. on March 2, 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 to provide telephone refills for prescriptions for established patients after having an in-person or two audio and video communications telemedicine medical services within the last 90 days. This waiver and emergency rule include allowing a physician to issue a prescription for the treatment of chronic pain with scheduled medications.

Texas Health and Human Services Commission

Emergency Rule

New 26 TAC §745.10005, establishing new health and safety standards for child-care facilities

CHAPTER 745. LICENSINGSUBCHAPTER X. EMERGENCY RULESDIVISION 1. EMERGENCY CHILD CARE OPERATION26 TAC §745.10005OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 745, Licensing, new §745.10005, concerning an emergency rule that establishes temporary requirements to ensure that child day-care operations follow health and safety guidelines from health authorities. The health, safety, and welfare of children will be at risk without adequate care and reasonable precautions.The purpose of the new emergency rule is to protect the health, safety, and welfare of children in day care operations and the public from the COVID-19 pandemic. The emergency rule will create specific requirements relating to health and safety standards and how to comply with recommendations from health authorities that have evolved since the pandemic began.BACKGROUND AND JUSTIFICATIONThe 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. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Emergency Rule with Ongoing Requirements for Certain Day Care Operations in Response to COVID-19.

State Board of Dental Examiners

Proposed Rules

Amending 22 TAC §108.7 to establish new requirements for the administration of Halcion

CHAPTER 108. PROFESSIONAL CONDUCTSUBCHAPTER A. PROFESSIONAL RESPONSIBILITY22 TAC §108.7The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §108.7, concerning the minimum standard of care. This amendment requires dentists to hold a Level 1 Minimal Sedation permit to administer Halcion (triazolam), and provides that dentists should administer Halcion (triazolam) in an in-office setting.

State Board of Dental Examiners

Proposed Rules

Amending 22 TAC §108.54 to update requirements for the advertisement of recognized dental specialties

CHAPTER 108. PROFESSIONAL CONDUCTSUBCHAPTER E. BUSINESS PROMOTION22 TAC §108.54The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §108.54, concerning the advertisement of recognized dental specialties. This amendment will update the language to include recently recognized dental specialties as approved and adopted by the American Dental Association’s National Commission on Recognition of Dental Specialties and Certifying Boards. The specialties include Oral Medicine, Dental Anesthesiology, and Orofacial Pain. The amendment also updates the language to show that the specialties are approved by ADA’s National Commission on Recognition of Dental Specialties and Certifying Boards.

State Board of Dental Examiners

Proposed Rules

New 22 TAC §119.10, recognizing Oral Medicine as a dental specialty

CHAPTER 119. SPECIAL AREAS OF DENTAL PRACTICE22 TAC §119.10The State Board of Dental Examiners (Board) proposes new 22 TAC §119.10, concerning the recognition of Oral Medicine as a dental specialty. The proposed new rule recognizes the specialty of Oral Medicine as approved and adopted by the American Dental Association’s National Commission on Recognition of Dental Specialties and Certifying Boards.New rule §119.10, Oral Medicine is the specialty of dentistry responsible for the oral health care of medically complex patients and for the diagnosis and management of medically-related diseases, disorders and conditions affecting the oral and maxillofacial region.

State Board of Dental Examiners

Proposed Rules

New 22 TAC §119.11, recognizing Dental Anesthesiology as a dental specialty

CHAPTER 119. SPECIAL AREAS OF DENTAL PRACTICE22 TAC §119.11The State Board of Dental Examiners (Board) proposes new 22 TAC §119.11, concerning the recognition of Dental Anesthesiology as a dental specialty. The proposed new rule recognizes the specialty of Dental Anesthesiology as approved and adopted by the American Dental Association’s National Commission on Recognition of Dental Specialties and Certifying Boards.New rule §119.11, Dental Anesthesiology is the specialty of dentistry and discipline of anesthesiology encompassing the art and science of managing pain, anxiety, and overall patient health during dental, oral, maxillofacial and adjunctive surgical or diagnostic procedures throughout the entire perioperative period. The specialty is dedicated to promoting patient safety as well as access to care for all dental patients, including the very young and patients with special health care needs.

State Board of Dental Examiners

Proposed Rules

New 22 TAC §119.12, recognizing Orofacial Pain as a dental specialty

CHAPTER 119. SPECIAL AREAS OF DENTAL PRACTICE22 TAC §119.12The State Board of Dental Examiners (Board) proposes new 22 TAC §119.12, concerning the recognition of Orofacial Pain as a dental specialty. The proposed new rule recognizes the specialty of Orofacial Pain as approved and adopted by the American Dental Association’s National Commission on Recognition of Dental Specialties and Certifying Boards.New rule §119.12, Orofacial Pain is the specialty of dentistry that encompasses the diagnosis, management and treatment of pain disorders of the jaw, mouth, face, head and neck. The specialty of Orofacial Pain is dedicated to the evidenced-based understanding of the underlying pathophysiology, etiology, prevention, and treatment of these disorders and improving access to interdisciplinary patient care.

Texas Health and Human Services Commission

Adopted Rules

Amending 1 TAC §355.112 to require electronic visit verification (EVV) for Medicaid attendant compensation

CHAPTER 355. REIMBURSEMENT RATESSUBCHAPTER A. COST DETERMINATION PROCESS1 TAC §355.112OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts amendments to §355.112, concerning Attendant Compensation Rate Enhancement. The amendments are adopted without changes to the proposed text as published in the August 21, 2020, issue of the Texas Register (45 TexReg 5717). Therefore, the rules will not be republished.BACKGROUND AND JUSTIFICATION The purpose of the amendments to §355.112 and §355.723 is to ensure compliance with the 21st Century Cures Act, which added section 1903(l) to the Social Security Act to require all states to implement the use of electronic visit verification (EVV). Section 1903(l) requires that EVV be used for all Medicaid personal care services requiring an in-home visit by a service provider. EVV is a computer-based system that verifies that a service is provided and electronically documents information about the service visit such as the name of the individual who received the service, the name of the service provider, the date and time the service begins and ends, and the location at which the service was provided.Home and Community-Based Services (HCS) and Texas Home Living (TxHmL) providers currently bill both day habilitation (DH) respite using service codes that do not distinguish between in-home and out-of-home services. The amendments establish separate service codes for in-home and out-of-home DH and respite to allow HHSC to compare service claims for in-home DH and in-home respite with the information in the EVV aggregator regarding the provision of those services. Furthermore, the amendments establish multiple service codes for out-of-home respite based on the location in which the service is provided to allow HHSC to collect appropriate service cost and claims information. HHSC is currently working to transition HCS and TxHmL claims processing to the Texas Medicaid & Healthcare Partnership. The changes to service codes will be effective when that transition is complete.

Texas Health and Human Services Commission

Adopted Rules

Amending 1 TAC §355.723 to require electronic visit verification (EVV) for reimbursement of Medicaid Home and Community-Based Services and Texas Home Living Programs

CHAPTER 355. REIMBURSEMENT RATESSUBCHAPTER F. REIMBURSEMENT METHODOLOGY FOR PROGRAMS SERVING PERSONS WITH MENTAL ILLNESS OR INTELLECTUAL OR DEVELOPMENTAL DISABILITY1 TAC §355.723OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts amendments to §355.723, concerning Reimbursement Methodology for Home and Community-Based Services and Texas Home Living Programs. The amendments are adopted without changes to the proposed text as published in the August 21, 2020, issue of the Texas Register (45 TexReg 5717). Therefore, the rules will not be republished.BACKGROUND AND JUSTIFICATIONThe purpose of the amendments to §355.112 and §355.723 is to ensure compliance with the 21st Century Cures Act, which added section 1903(l) to the Social Security Act to require all states to implement the use of electronic visit verification (EVV). Section 1903(l) requires that EVV be used for all Medicaid personal care services requiring an in-home visit by a service provider. EVV is a computer-based system that verifies that a service is provided and electronically documents information about the service visit such as the name of the individual who received the service, the name of the service provider, the date and time the service begins and ends, and the location at which the service was provided.Home and Community-Based Services (HCS) and Texas Home Living (TxHmL) providers currently bill both day habilitation (DH) respite using service codes that do not distinguish between in-home and out-of-home services. The amendments establish separate service codes for in-home and out-of-home DH and respite to allow HHSC to compare service claims for in-home DH and in-home respite with the information in the EVV aggregator regarding the provision of those services. Furthermore, the amendments establish multiple service codes for out-of-home respite based on the location in which the service is provided to allow HHSC to collect appropriate service cost and claims information. HHSC is currently working to transition HCS and TxHmL claims processing to the Texas Medicaid & Healthcare Partnership. The changes to service codes will be effective when that transition is complete.

Texas Department of Licensing and Regulation

Adopted Rules

Amending 16 TAC §110.24 and §110.25 to require that athletic trainers complete human trafficking prevention training

CHAPTER 110. ATHLETIC TRAINERS16 TAC §110.24, §110.25OVERVIEWThe Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 110, §110.24 and §110.25, regarding the Athletic Trainers Program, without changes to the proposed text as published in the September 25, 2020, issue of the Texas Register (45 TexReg 6660). These rules will not be republished.SECTION-BY-SECTION SUMMARY The adopted rules amend §110.24 by requiring athletic trainers to complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116 and to provide proof of completion as prescribed by the Department.The adopted rules amend §110.25 by allowing an HHSC-approved human trafficking prevention training course to count toward continuing education requirements. The adopted rules would allow licensees to claim one clock-hour of credit for each clock-hour spent on the training course.BACKGROUND AND JUSTIFICATION The adopted rules are necessary to implement House Bill (HB) 2059, 86th Legislature, Regular Session (2019). HB 2059 requires athletic trainers and other health care practitioners to complete a human trafficking prevention training course in order to renew their license. The Executive Commissioner of the Health and Human Services Commission (HHSC) approves human trafficking prevention courses, including at least one course that is available without charge, and posts a list of approved courses on the HHSC website. The statutory provisions created by HB 2059 are located in Texas Occupations Code, Chapter 116. The adopted rules implement this training requirement and allow the training to count toward the required minimum continuing education for athletic trainers.The adopted change to §110.24 was presented to and discussed by the Advisory Board of Athletic Trainers (Advisory Board) at its meeting on June 22, 2020. The Advisory Board did not make any changes to the proposed amendment. The Advisory Board voted and recommended that the proposed change to §110.24 be published in the Texas Register for public comment. Additionally, the Advisory Board discussed allowing the training to count toward continuing education requirements.

Texas Department of State Health Services

Adopted Rules

Amending 25 TAC §37.350 to clarify the role of the Texas School Health Advisory Committee

CHAPTER 37. MATERNAL AND INFANT HEALTH SERVICESSUBCHAPTER R. ADVISORY COMMITTEES25 TAC §37.350OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts an amendment to §37.350, concerning the Texas School Health Advisory Committee (committee).The amendment to §37.350 is adopted with changes to the proposed text as published in the August 28, 2020, issue of the Texas Register (45 TexReg 6020) and will be republished.BACKGROUND AND JUSTIFICATION The amendment is necessary to review and update §37.350 in accordance with Texas Government Code, §2001.039 regarding Agency Review of Existing Rules. The amendment updates the statutory reference establishing the committee and clarifies committee composition, roles, and responsibilities.

Texas Health and Human Services Commission

Adopted Rules

Amending 26 TAC §§302.1, 302.5, 302.7 and 302.9 to clarify the roles of various authorities in administering IDD-BH training

CHAPTER 302. IDD-BH TRAININGSUBCHAPTER A. MENTAL HEALTH FIRST AID26 TAC §§302.1, 302.5, 302.7, 302.9OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts amendments to §302.1, concerning Purpose; §302.5, concerning Definitions; §302.7, concerning Mental Health First Aid Training Protocols; and §302.9, concerning Local Mental Health Authority Responsibilities. The amendments to §§302.1, 302.5, 302.7, and 302.9 are adopted without changes to the proposed text as published in the September 25, 2020, issue of the Texas Register (45 TexReg 6662). These rules will not be republished.BACKGROUND AND JUSTIFICATION The amendments are necessary to include Local Behavioral Health Authorities (LBHAs), in addition to Local Mental Health Authorities (LMHAs), in the mental health first aid training requirements and add language to ensure consistency between statutory and rule requirements. The language clarifies the role of the LMHA and the LBHA in providing the training, provides guidelines for the LMHA and LBHA, and aligns with statute.

Texas Department on Aging and Disability Services

In Addition

Correction of error – correcting the effective date of amended 40 TAC §9.553, which clarified contracting requirements for the Medicaid Texas Home Living (TxHmL) Program and Community First Choice (CFC)

On December 2, 2020, the Department of Aging and Disability Services filed the adoption of an amendment to 40 TAC §9.553 for publication in the December 18, 2020, issue of the Texas Register. This filing was assigned docket number TRD-202005179. Due to an error by the Texas Register, the adoption was published with the wrong effective date. The correct effective date for amended 40 TAC §9.553 is December 22, 2020.

Texas Health and Human Services Commission

In Addition

Notice of Stakeholder Engagement Meetings on Potential Medicaid Payment Rates

OVERVIEWThe Texas Health and Human Services Commission (HHSC) will conduct stakeholder engagement meetings on January 21, 2021, beginning at 9:00 a.m. CST, to receive comments on Medicaid payment rates that may be addressed at the May 2021 rate hearings. Note that HHSC will not be publishing any proposed rates at this time, and the stakeholder engagement meetings are solely to take commentary on the topics listed below.SCHEDULE The stakeholder engagement meetings will be held as follows:1. Acute Care Services: January 21, 2021, 9:00 a.m. – 11:00 a.m.2. Long-Term Services & Supports: January 21, 2021, 12:30 p.m. – 2:30 p.m.3. Hospital Services: January 21, 2021, 3:00 p.m. – 5:00 p.m.HEARING DETAILS Due to the declared state of disaster stemming from COVID-19, these meetings will be conducted online only. Physical entry to the meetings will not be permitted.Please register for HHSC Provider Finance Department Stakeholder Engagement Meetings on January 21, 2021 at: https://attendee.gotowebinar.com/register/8977546937378429453 (Webinar ID: 353-156-171). After registering, you will receive a confirmation email containing information about joining the webinar.HHSC will record the meetings. The recording will be archived and can be accessed on demand at https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings.WRITTEN COMMENTS Written comments regarding the proposed topics may be submitted in lieu of, or in addition to, oral comments until 5:00 p.m. the day following the meetings, January 22, 2021. Written comments may be sent by U.S. mail, overnight mail, fax, or e-mail. Addresses are included in this week’s edition of the Texas Register (46 Tex Reg 347). 

Texas Department of State Health Services

In Addition

Commissioner has issued an amendment designating Oliceridine as a Schedule II controlled substance

FEDERAL ACTIONThe Drug Enforcement Agency issued an interim final rule placing oliceridine, including its isomers, esters, ethers, salts and salts of isomers, esters and ethers whenever the existence of such is possible, in schedule II of the Controlled Substances Act. This action was published in the October 30, 2020 edition of the Federal Register,volume 85, number 211, pages 68749-68753. STATE ACTIONPursuant to Section 481.034(g), as amended by the 75th legislature, of the Texas Controlled Substances Act, Health and Safety Code, Chapter 481, at least thirty-one days have expired since notice of the above referenced actions were published in the Federal Register. In the capacity as Commissioner of the Texas Department of State Health Services, John Hellerstedt, M.D., does hereby order the substance oliceridine be placed into schedule II.

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