Texas Register February 12, 2021 Volume: 46 Number: 7

Governor

 

Appointments

Governor reappoints three members and appoints one new member to the Texas Board of Nursing

Appointments for February 1, 2021Appointed to the Texas Board of Nursing, for terms to expire January 31, 2027:Daryl Chambers of Grand Prairie, Texas (replacing Francis D. Stokes of Port Aransas, whose term expired);Allison P. Edwards, Dr. P.H. of Bellaire, Texas (Dr. Edwards is being reappointed);Kathy L. Leader-Horn of Granbury, Texas (Ms. Leader-Horn is being reappointed);David E. Saucedo, II of El Paso, Texas (Mr. Saucedo is being reappointed).

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Governor

Appointments

Governor appoints Donald R. Margo II to the Cancer Prevention and Research Institute of Texas Oversight Committee

Appointments for February 1, 2021Appointed to the Cancer Prevention and Research Institute of Texas Oversight Committee, for a term to expire January 31, 2027, Donald R. “Dee” Margo, II of El Paso, Texas (Mayor Margo is being reappointed).

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Texas Health and Human Services Commission

Emergency Rule

New 26 TAC §261.351, allowing ICF/IID program providers to receive reimbursement for certain individuals’ therapeutic leave due to COVID-19

CHAPTER 261. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS (ICF/IID) PROGRAM–CONTRACTINGSUBCHAPTER K. EMERGENCY RULES FOR THE ICF/IID PROGRAM26 TAC §261.351OVERVIEWThe 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 §261.351, concerning an emergency rule related to leave during the COVID-19 pandemic. The emergency rule allows HHSC 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 also 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 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. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of §261.351 Emergency Rule Related to Leave During the COVID-19 Pandemic.

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Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §353.4 to establish reimbursement methodology for Medicaid MCOs’ payments to certain out-of-network specialty providers

CHAPTER 353. MEDICAID MANAGED CARESUBCHAPTER A. GENERAL PROVISIONS1 TAC §353.4OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §353.4, concerning Managed Care Organization Requirements Concerning Out-of-Network Providers.SECTION SUMMARYThe proposed amendment to §353.4 adds new subsection (d) which sets forth the reimbursement methodology for a Medicaid health care MCO to pay out-of-network specialty providers performing services in accordance with proposed new §353.7. The proposed amendment also reformats the section and updates references.BACKGROUND AND JUSTIFICATION The purpose of the proposal is to implement Texas Government Code, §533.038(g), added by Senate Bill (S.B.) 1207, 86th Legislature, Regular Session, 2019. Senate Bill 1207 requires HHSC to establish a process for a Medicaid health care managed care organization (MCO) to allow a member with complex medical needs, who has established a relationship with a specialty provider through the member’s primary health benefit plan, to continue receiving care from that specialty provider, whether or not that provider is in the health care MCO’s network.

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Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §354.1311 to clarify benefit limits and prior authorization requirements for Medicaid substance use disorder treatment services

CHAPTER 354. MEDICAID HEALTH SERVICESSUBCHAPTER A. PURCHASED HEALTH SERVICESDIVISION 22. SUBSTANCE USE DISORDER TREATMENT SERVICES1 TAC §354.1311OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1311, concerning Benefits and Limitations.SECTION SUMMARYThe title of Chapter 354, Subchapter A, Division 22 has been updated from “Substance Abuse and Dependency Treatment Services” to “Substance Use Disorder Treatment Services”, to conform with updated Medicaid medical policy.The proposed amendment to §354.1311, Benefits and Limitations, clarifies benefit limits and prior authorization requirements. Limits on outpatient individual and group counseling and residential treatment can be exceeded with documentation of the supporting medical necessity for continued services to conform with updated Medicaid medical policy. Similarly, the term “medication assisted therapy” has been updated to “medication assisted treatment.” References to outpatient and residential detoxification are updated to “withdrawal management” consistent with American Society of Addiction Medicine terminology.BACKGROUND AND JUSTIFICATION The proposed amendments update rules for Substance Abuse Dependency and Treatment Services and are necessary to comply with the Mental Health Parity and Addiction Equity Act of 2008 and the Centers for Medicare & Medicaid Services (CMS) Medicaid and CHIP Mental Health Parity Final Rule issued March 2016, related to mental health parity requirements for Medicaid and CHIP managed care organizations. The final CMS Medicaid/CHIP parity rule requires that quantitative treatment limits (limits on scope or duration) for mental health and substance use disorder (SUD) benefits cannot be more restrictive than substantially all medical or surgical benefits in a classification (e.g., outpatient services.) The rule amendment at §354.1311 modernizes the title from Substance Abuse and Dependency Treatment Services to Substance Use Disorder (SUD) Treatment Services, and allows limits on outpatient counseling (both individual and group) and residential treatment for adults to be exceeded with documentation of the supporting medical necessity for continued services. Previously, only children under the age of 21 could exceed benefit limits for these services.

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Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §354.1312 to expand the scope of providers who may deliver Medicaid substance use disorder treatment services

CHAPTER 354. MEDICAID HEALTH SERVICESSUBCHAPTER A. PURCHASED HEALTH SERVICESDIVISION 22. SUBSTANCE USE DISORDER TREATMENT SERVICES1 TAC §354.1312OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1312, concerning Conditions for Participation.SECTION SUMMARYThe proposed amendment to §354.1312, Conditions for Participation, clarifies that HHSC, rather than the Department of State Health Services, licenses chemical dependency treatment facilities and narcotic treatment programs. The proposed amendment expands the providers who may deliver medication assisted treatment. In addition to physicians, the proposed amendment allows other qualified prescribers, as specified in the TMPPM, to provide medication assisted treatment in an office setting and clarifies that methadone for opioid use disorder may only be provided by an HHSC-licensed narcotic treatment program in compliance with federal regulations.BACKGROUND AND JUSTIFICATION The proposed amendments update rules for Substance Abuse Dependency and Treatment Services and are necessary to comply with the Mental Health Parity and Addiction Equity Act of 2008 and the Centers for Medicare & Medicaid Services (CMS) Medicaid and CHIP Mental Health Parity Final Rule issued March 2016, related to mental health parity requirements for Medicaid and CHIP managed care organizations. The final CMS Medicaid/CHIP parity rule requires that quantitative treatment limits (limits on scope or duration) for mental health and substance use disorder (SUD) benefits cannot be more restrictive than substantially all medical or surgical benefits in a classification (e.g., outpatient services.) The proposed amendments at §354.1312 are necessary to clarify and expand the types of providers who may deliver medication assisted treatment, consistent with the Comprehensive Addiction and Recovery Act of 2016; the Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act of 2018; Senate Bill 1564, 86th Legislature, Regular Session, 2019; and Medicaid SUD medical policy updates to the Texas Medicaid Provider Procedures Manual (TMPPM) that became effective January 1, 2019.

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Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §355.8600 to expand payment eligibility for certain providers of ambulance services

CHAPTER 355. REIMBURSEMENT RATESSUBCHAPTER J. PURCHASED HEALTH SERVICESDIVISION 31. AMBULANCE SERVICES1 TAC §355.8600OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.8600, concerning Reimbursement Methodology for Ambulance Services.A detailed summary of changes made by the amendments is included in this week’s edition of the Texas Register (46 Tex Reg 1005).  BACKGROUND AND JUSTIFICATION The purpose of the proposal is to establish enhanced supplemental payments to publicly owned ground emergency ambulance service providers. Publicly owned ground emergency ambulance providers currently receive fee-for-service payments and supplemental payments to cover uncompensated care costs. Subject to approval by the Centers for Medicare and Medicaid Services, the proposed amendment will make publicly-owned ground emergency ambulance providers eligible for additional payments for services up to the average rate payable by commercial insurers for those services.

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Texas Health and Human Services Commission

Adopted Rules

Amending 1 TAC §354.1003 to update time limitations for submitting Medicaid claims

CHAPTER 354. MEDICAID HEALTH SERVICESSUBCHAPTER A. PURCHASED HEALTH SERVICESDIVISION 1. MEDICAID PROCEDURES FOR PROVIDERS1 TAC §354.1003OVERVIEWThe Texas Health and Human Services Commission (HHSC) adopts an amendment to §354.1003, concerning Time Limits for Submitted Claims. The amendment to §354.1003 is adopted without changes to the proposed text as published in the October 16, 2020 issue of the Texas Register (45 TexReg 7353). This rule will not be republished.BACKGROUND AND JUSTIFICATION Under §354.1003, most Medicaid providers must submit claims to the Medicaid claims administrator within 95 days from the date of service or the claims will be denied for late filing. Additionally, providers must adhere to claims filing and appeal deadlines and all claims, including all appeals processes, must be finalized within 24 months of the date of service. On occasion, circumstances either partially or wholly beyond the providers’ control result in claims being finalized outside of this 24-month timeliness requirement. This amendment adds an exception to the rule that allows HHSC to consider such situations as exceptions to the provider 24-month time limit for filing claims if the provider shows good cause and to the extent permitted by state and federal law.

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Texas Health and Human Services Commission

Adopted Rules

Amending 1 TAC §393.1 to update informal dispute resolution procedures for nursing facilities and ICF/IID establishments

CHAPTER 393. INFORMAL DISPUTE RESOLUTION AND INFORMAL RECONSIDERATION1 TAC §393.1OVERVIEWThe Texas Health and Human Services Commission (HHSC) adopts amendments to §393.1, concerning Informal Dispute Resolution for Nursing Facilities and Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICF/IID).BACKGROUND AND JUSTIFICATION The amendment to §393.1 will comply with Senate Bill (S.B.) 304, 84th Legislature, Regular Session, 2015, which modified §531.058 Texas Government Code by requiring HHSC to contract with a disinterested non-profit organization to perform Informal Dispute Resolution (IDR) reviews for nursing facilities. To foster consistency, all three facility types IDR serves were included in the procurement. Additionally, amendments to this rule also align with House Bill (H.B.) 2025, 85th Legislature, Regular Session, 2017, which modified Texas Health and Safety Code Chapters 242, 247, and 252. H.B. 2025 required a system to be developed to record and track the severity and scope of licensure violations for Intermediate Care Facilities (ICF/IIDs) and Assisted Living Facilities (ALFs).

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Texas Health and Human Services Commission

Adopted Rules

Amending 1 TAC §393.2 to update informal dispute resolution procedures for assisted living facilities

CHAPTER 393. INFORMAL DISPUTE RESOLUTION AND INFORMAL RECONSIDERATION1 TAC §393.2OVERVIEWThe Texas Health and Human Services Commission (HHSC) adopts amendments to §393.2, concerning Informal Dispute Resolution for Assisted Living Facilities. BACKGROUND AND JUSTIFICATION The amendment to §393.2 will comply with S.B. 924, 85th Legislature, Regular Session, 2017, which modified Texas Health and Safety Code §247.051, concerning the IDR process for ALFs. This statute was modified to include the language in Texas Government Code §531.058 from S.B. 304 regarding the outsourcing of the IDR process to ensure it was also required of ALFs. Other modifications to that statute included provisions for Assisted Living Facility providers to be able to obtain documentation regarding the survey/investigation. Additionally, amendments to this rule also align with H.B. 2025.

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Texas Health and Human Services Commission

Adopted Rules

New 1 TAC §393.3, establishing informal dispute resolution procedures for TxHmL and HCS providers

CHAPTER 393. INFORMAL DISPUTE RESOLUTION AND INFORMAL RECONSIDERATION1 TAC §393.3OVERVIEWThe Texas Health and Human Services Commission (HHSC) adopts new §393.3 concerning Informal Dispute Resolution for Texas Home Living and Home and Community-based Service providers.BACKGROUND AND JUSTIFICATION The new §393.3 will comply with H.B. 2590, 85th Legislature, Regular Session, 2017, which modified Human Resources Code by adding a new section §161.0892. This new section directs HHSC to establish and outsource an IDR process for Texas Home Living (TxHmL) and Home and Community-based Service (HCS) providers.

Texas Board of Nursing

Adopted Rules

Amending 22 TAC §211.6 to allow for the adoption of emergency rules by the Eligibility and Disciplinary Committe

CHAPTER 211. GENERAL PROVISIONS22 TAC §211.6OVERVIEWThe Texas Board of Nursing (Board) adopts amendments to §211.6, relating to Committees of the Board, without changes to the proposed text published in the December 18, 2020, issue of the Texas Register (45 TexReg 8962). The rule will not be republished.Adopted §211.6(b)(3)(ii) authorizes the Eligibility and Disciplinary Committee to approve the adoption of rules on an emergency basis pursuant to Tex. Gov’t Code §2001.034.BACKGROUND AND JUSTIFICATION The adopted amendments authorize the Eligibility and Disciplinary Committee (Committee) of the Board to convene and consider and approve the adoption of emergency rules. The Committee is a standing committee comprised of three members of the Board, one consumer member and two nurse members. Because Committee members are pre-assigned to serve on the Committee in three month intervals, convening the three-member Committee, as opposed to a quorum of the full Board, is less likely to cause delay in the adoption of rules under emergency conditions. The conditions of the Government Code §2001.034 would still be required to be met in order for the Committee to consider the adoption of emergency rules.

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Texas Board of Nursing

Adopted Rules

Amending 22 TAC §213.1 and §213.20 to remove outdated references to the Board of Nurse Examiners

CHAPTER 213. PRACTICE AND PROCEDURE22 TAC §§213.1 213.20OVERVIEWThe Texas Board of Nursing (Board) adopts amendments to §213.1, relating to Definitions and §213.20, relating to Informal Proceedings and Alternative Dispute Resolution (ADR), without changes to the proposed text published in the December 18, 2020, issue of the Texas Register (45 TexReg 8963) and will not be republished.BACKGROUND AND JUSTIFICATIONThe adopted amendments to §213.1 make non-substantive changes to the section in order to update outdated references to the Texas Board of Nurse Examiners. The adopted amendments to §213.20 are necessary to correct outdated references to the Board of Nurse Examiners within the text of the rule.

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Texas Board of Nursing

Adopted Rules

Amending 22 TAC §215.2 to define the examination year for purposes of determining the NCLEX-RN® examination pass rate

CHAPTER 215. PROFESSIONAL NURSING EDUCATION22 TAC §215.2OVERVIEWThe Texas Board of Nursing (Board) adopts amendments to §215.2, relating to Definitions, without changes to the proposed text published in the December 18, 2020, issue of the Texas Register (45 TexReg 8965). The rule will not be republished.Adopted §215.2(20) defines the examination year for a professional nursing education program, for the purpose of determining its annual NCLEX-RN® examination pass rate, as beginning January 1 and ending December 31.BACKGROUND AND JUSTIFICATIONMinimum examination pass rates are required for a nursing education program’s continued approval status. Examination pass rates are determined based upon a program’s examination year. The current examination year for Texas professional nursing education programs is October 1 – September 30. This is a different time period than the examination year for Texas vocational nursing education programs, which is based on the calendar year (January 1 – December 31). The adopted rule amendments align the professional nursing education program exam year with the vocational nursing education program exam year, as well as with the exam year utilized by most accreditors and other boards of nursing.The current examination year for Texas professional nursing education programs causes inconsistencies in reported NCLEX pass rates, since education programs have different academic years and graduation schedules. The National Council State Boards of Nursing (NCSBN) reports NCLEX state data based upon the calendar year, and many non-education settings require calendar year information. Accreditation agencies usually base their data on the calendar year, as well. Aligning program exam years would also permit the Board to calculate and report pass rates for all nursing education programs at the same time.

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Texas Board of Nursing

Adopted Rules

Amending 22 TAC §217.23 to prohibit balance billing by out-of-network providers and establish a new dispute resolution process

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE22 TAC §217.23OVERVIEWThe Texas Board of Nursing (Board) adopts amendments to §217.23, relating to Balance Billing Dispute Resolution, with changes to the proposed text published in the November 27, 2020, issue of the Texas Register (45 TexReg 8454). The rule will be republished.SUMMARY OF CHANGES A summary of changes implemented by the amendments is included in this week’s edition of the Texas Register (46 Tex Reg 1059). BACKGROUND AND JUSTIFICATION The amendments are being adopted under the authority effectuated by the passage of Senate Bill (SB) 1264 during the 86th Legislative Session, effective September 1, 2019. In order to protect consumers, SB 1264 prohibits balance billing by many out of network providers, except in a narrow set of circumstances. Additionally, SB 1264 authorizes a new dispute resolution process for claim disputes between out of network providers and health benefit plan issuers and administrators.The balance billing protections provided by SB 1264 generally apply to enrollees of health benefit plans offered by insurers and health maintenance organizations regulated by the Texas Department of Insurance (Department), as well as the Texas Employees Group, the Texas Public School Employees Group, and the Texas School Employees Uniform Group. The provisions of the bill apply to health care and medical services and supplies provided on or after January 1, 2020.Additional information on the balance billing prohibition is included in this week’s edition of the Texas Register (46 Tex Reg 1059). 

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Texas Board of Nursing

Adopted Rules

Amending 22 TAC §222.4 to establish a process by which prescribers may waive the electronic prescribing requirements

CHAPTER 222. ADVANCED PRACTICE REGISTERED NURSES WITH PRESCRIPTIVE AUTHORITY22 TAC §222.4OVERVIEWThe Texas Board of Nursing (Board) adopts amendments to §222.4, relating to Minimum Standards for Prescribing or Ordering Drugs and Devices, without changes to the proposed text published in the December 18, 2020, issue of the Texas Register (45 TexReg 8966). The rule will not be republished.In general, adopted §222.4(c) sets forth the Board’s waiver process from electronic prescribing requirements.BACKGROUND AND JUSTIFICATION House Bill (HB) 2174, enacted during the 86th Legislative Session, requires prescriptions for controlled substances to be issued electronically after January 1, 2021, unless certain prescribed exceptions apply. One of the specified statutory exceptions provides for a waiver process. Pursuant to the Health & Safety Code §481.0755(a)(9) and §481.0756, a prescriber may issue a non-electronic prescription for a controlled substance if the prescriber has received a waiver from the prescriber’s respective licensing agency. The waiver is valid for one year after issuance. A prescriber may re-apply for a subsequent waiver not earlier than 30 days prior to the expiration of the waiver, so long as circumstances that necessitated the waiver continue. The adopted amendments are necessary to implement the Board’s waiver process under HB 2174.Pursuant to the Health & Safety Code §481.0756(d), the Texas Pharmacy Board must adopt rules establishing eligibility for a waiver, including economic hardship; technological limitations not reasonably within the control of the prescriber; or other exceptional circumstances demonstrated by the prescriber. Further, pursuant to §481.0756(e), the Board is required to adopt rules for the granting of waivers that are consistent with those rules adopted by the Texas Pharmacy Board. The Board has worked cooperatively with the Texas Pharmacy Board to ensure that the Board’s adopted rules are consistent with the amendments proposed (45 TexReg 6949) and adopted by the Texas Pharmacy Board (45 TexReg 8866).

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Texas Board of Nursing

Adopted Rules

Amending 22 TAC §223.1 to update the endorsement licensure fee

CHAPTER 223. FEES22 TAC §223.1OVERVIEWThe Texas Board of Nursing (Board) adopts amendments to §223.1, concerning Fees, without changes to the proposed text published in the December 18, 2020, issue of the Texas Register (45 TexReg 8969) and will not be republished.Adopted §223.1(a)(2) sets the endorsement licensure fee at $125.BACKGROUND AND JUSTIFICATIONOn October 8, 2019, the Office of the Governor requested that occupational licensing agencies review their licensing rules and policies to identify areas where they could remove burdensome or unreasonable obstacles to licensure, specifically developing and implementing plans to reduce license application fees to 75% or less of the national average for equivalent or comparable occupations. In response, the Board reviewed the 2018 member profiles maintained by the National Council of State Boards of Nursing, which reports comprehensive, detailed fee information from responding boards of nursing. The profile revealed that the Board’s current endorsement licensure fee is at 81% of the national fee average. The adopted amendments are necessary to reduce the Board’s current endorsement fee from $161 to $125 in order to meet the Office of the Governor’s request and maintain legislative budget requirements.

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Texas Department of State Health Services

Adopted Rules

New 25 TAC §§40.41 – 40.49 to update policies for the maintenance and administration of asthma medication in schools

CHAPTER 40. EPINEPHRINE AUTO-INJECTOR AND ANAPHYLAXIS POLICIESSUBCHAPTER D. MAINTENANCE AND ADMINISTRATION OF ASTHMA MEDICATION25 TAC §§40.41 – 40.49OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts new §§40.41 – 40.49, concerning Maintenance and Administration of Asthma Medication.New §§40.44 – 40.47 are adopted with changes to the proposed text as published in the October 16, 2020, issue of the Texas Register (45 TexReg 7387) and will be republished. New §§40.41 – 40.43, 40.48, and 40.49 are adopted without changes to the proposed text as published in the October 16, 2020, issue of the Texas Register (45 TexReg 7387), and therefore will not be republished.BACKGROUND AND JUSTIFICATION The new rules implement House Bill (H.B.) 2243, 86th Legislature, Regular Session, 2019, which amended Texas Education Code, Chapter 38 Subchapter E. H.B. 2243 allows school districts, open-enrollment charter schools, and private schools to develop a policy to stock and administer asthma medication to a student if the student is reasonably believed to be experiencing a symptom of asthma; the school nurse has written authorization from a parent or guardian of the student stating that the school nurse may administer prescription asthma medication to the student; and the student has been diagnosed as having asthma.DSHS convened the Stock Epinephrine Advisory Committee (SEAC) to request recommendations on how to integrate evidence-based practices in the rules while allowing flexibility for the school districts and schools. The SEAC recommended to stock at least two doses of medication, the type of medication, the inclusion of the equipment to have on hand to administer the medication, and to report the administration of asthma medication to the DSHS Commissioner within 10 business days after administration of the medication. The new rules allow flexibility so that schools may develop policies specific to each campus, including campus geography and student population size.

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