Texas Register December 24, 2021 Volume: 46 Number: 52

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Proclamation 41-3867
    - 1.0.1.1 The Governor issues Proclamation 41-3867, renewing the disaster proclamation for all counties in Texas.
2 Attorney General
- - 2.0.1 Opinions Re:
    - 2.0.1.1 The Honorable Donna Campbell, M.D. issues Opinion No. KP-0395 regarding Texas medical school compliance with Coats-Snowe Amendment, which prohibits discrimination against health care entities that refuse to provide or undergo training for induced abortion.
3 Texas Health and Human Services Commission
4 State Board of Dental Examiners
- - 4.0.1 Proposed Rules Re:
    - 4.0.1.1 Amending 22 TAC §107.204 to establish the timing requirements for the issuance of remedial plans to resolve the investigation of a complaint.
  - 4.0.2 Adopted Rules Re:
5 Texas Board of Nursing
- - 5.0.1 Proposed Rules Re:
    - 5.0.1.1 Amending 22 TAC §223.1 to decrease the examination fee for vocational and registered nurse applicants from $75 to $50.
6 Texas State Board of Pharmacy
- - 6.0.1 Proposed Rules Re:
  - 6.0.2 Withdrawn Rules Re:
7 Department of Aging and Disability Services
- - 7.0.1 Proposed Rules Re:
    - 7.0.1.1 Repealing 40 TAC §§93.1 – 93.9 to relocate the Employee Misconduct Registry (EMR) rules from 40 TAC Chapter 93 to 26 TAC Chapter 561.
8 Department of State Health Services
- - 8.0.1 Adopted Rules Re:
    - 8.0.1.1 Amending 25 TAC §229.261 to revise the administrative penalty level ranges.
9 Texas Department of Licensing and Regulation
- - 9.0.1 Adopted Rules Re:

The Governor

Proclamation 41-3867

The Governor issues Proclamation 41-3867, renewing the disaster proclamation for all counties in Texas.

OVERVIEW

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

BACKGROUND AND JUSTIFICATION

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, Governor hereby suspends such statutes and rules for the duration of this declared disaster for that limited purpose.

Attorney General

Opinions Re:

The Honorable Donna Campbell, M.D. issues Opinion No. KP-0395 regarding Texas medical school compliance with Coats-Snowe Amendment, which prohibits discrimination against health care entities that refuse to provide or undergo training for induced abortion.

SUMMARY OF OPINION

The Coats-Snowe Amendment, found in 42 U.S.C. §238n, prohibits the State of Texas from discriminating against physicians, medical students, or graduate medical education training programs for their refusal to participate in abortion related training. It requires the State of Texas to disregard Accreditation Council for Graduate Medical Education accreditation standards that compel the provision of induced abortion training on an opt-out basis, thereby allowing graduate medical education programs to provide induced abortion training on an elective, opt-in basis.

Furthermore, a graduate medical education training program that forces a person to affirmatively opt-out of such training raises constitutional and religious freedom concerns and implicates conscience rights of doctors and students. Given these constitutional and statutory concerns, a graduate medical education program should implement opt-in induced abortion training.

Texas Health and Human Services Commission

Proposed Rules Re:

Amending 1 TAC §355.8212 to clarify rules concerning Waiver Payments to Hospitals for Uncompensated Charity Care.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 11. TEXAS HEALTHCARE TRANSFORMATION AND QUALITY IMPROVEMENT PROGRAM REIMBURSEMENT
1 TAC §355.8212

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.8212, concerning Waiver Payments to Hospitals for Uncompensated Charity Care.

BACKGROUND AND JUSTIFICATION

Texas Health and Human Services Commission (HHSC) makes Uncompensated Care (UC) payments to qualifying hospitals that serve a large number of Medicaid recipients and uninsured individuals. Attachment H of the 1115 Waiver establishes rules and guidelines for the State to claim federal matching funds for UC payments. This proposal amends the definitions of certain provider classes, describes a time frame during which the provider classes are classified into certain categories, and updates and clarifies other provisions.

House Bill (H.B.) 3301, 86th Legislature, allowed qualifying hospitals in low-population areas to enter into merger agreements, subject to receipt of a Certificate of Public Advantage (COPA). In 2019, COPAs were approved for two merger agreements. The mergers resulted in each of the merged entities being designated a Sole Community Hospital (SCH) by the federal Centers for Medicare and Medicaid Services (CMS). This SCH designation in turn resulted in each of the merged entities to be classified as rural hospitals under HHSC rules, significantly shifting the rural set-aside funds for Demonstration Year 10 (DY10).

As a result, HHSC will update the rule to redefine the classification criteria for a rural hospital. This will include an update to the rural set-aside amount to address this large shift in funds, by setting the rural set-aside to the maximum costs for DY10. For Demonstration Year 11 (DY11) and onward, the rural set-aside will be the lesser of DY10 costs or that demonstration year’s maximum costs.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.8212(b)(19) adds new criterion to classify hospitals as a rural hospital. A rural hospital includes a hospital that is designated by Medicare as a Critical Access Hospital (CAH) or a Sole Community Hospital (SCH) before October 1, 2021. Subparagraph (D) is added to define a hospital as a rural hospital if the hospital has 100 or fewer beds, is designated by Medicare as a CAH, a SCH, or a Rural Referral Center (RRC), and is located in an Metropolitan Statistical Area (MSA).
The proposed amendment to §355.8212(g)(6)(D)(ii)(I)(-b-)(-1-) updates the set aside for rural hospitals for demonstration year ten to be calculated like demonstration year nine.
The proposed amendment to §355.8212(g)(6)(D)(ii)(I)(-b-)(-2-) updates the demonstration years.
Other edits include replacing references to “Rate Analysis” with “Provider Finance” and correcting grammar for clarity.

New 26 TAC §§561.1 – 561.9, updating and relocating the Employee Misconduct Registry (EMR) rules from 40 TAC Chapter 93 to 26 TAC Chapter 561.

CHAPTER 561. EMPLOYEE MISCONDUCT REGISTRY
26 TAC §§561.1 – 561.9

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new Chapter 561 in Title 26, Part 1, of the Texas Administrative Code (TAC), concerning Employee Misconduct Registry. The new chapter consists of §§561.1 – 561.9.

BACKGROUND AND JUSTIFICATION

The purpose of this proposal is to update and relocate the Employee Misconduct Registry (EMR) rules from 40 TAC Chapter 93 to 26 TAC Chapter 561. The relocation of the rules is necessary to implement Senate Bill 200, 84th Legislature, Regular Session, 2015, which transferred the functions of the legacy Department of Aging and Disability Services (DADS) to HHSC, effective September 1, 2017. The repeal is proposed elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

These proposed new rules contain language that is substantially the same as the language of the rules they are replacing. The proposed rules update HHSC agency and organizational definitions, references, and authority to reflect the transfer of functions from DADS to HHSC. The proposed new rules also revise the notice provisions for reportable conduct to conform to statutory requirements and revise the informal review process to provide for Regulatory Services Division central office staff to conduct or participate in the informal review process and in the decision-making process. Citations are updated to reflect the transition from Title 40 to Title 26.
Proposed new §561.1, Purpose, describes the purpose of the EMR, which is to implement Texas Health and Safety Code Chapter 253, Employee Misconduct Registry.
Proposed new §561.2, Definitions, provides definitions of key terms and phrases used in the chapter.
Proposed new §561.3, Employment and Registry Information, describes the criteria used to determine eligibility for employment, verification requirements, and other EMR requirements.
Proposed new §561.4, Investigations, describes the criteria for investigations of certain allegations of abuse, neglect, and exploitation against an employee, relating to reportable conduct and EMR.
Proposed new §561.5, Preliminary Results of Investigation and Notice to Employee, describes the process when the preliminary results of an investigation indicate that an employee might have committed reportable conduct; the required content of notice to the employee; the employee’s dispute right through the informal review process; the dispute deadline; and notice that engaging in the informal review process does not relieve an employee from complying with requirements relating to a reportable conduct finding should HHSC uphold the preliminary results.
Proposed new §561.6, Informal Review, describes the informal review process once an employee makes a timely request.
Proposed new §561.7 Reportable Conduct Finding and Notice and Opportunity for Administrative Hearing, describes the requirements once HHSC makes a reportable conduct finding; content of the notice of reportable conduct, including the employee’s right to an administrative hearing; the hearing process; proposal for decision; and entry into EMR.
Proposed new §561.8, Entering Information in the EMR, describes the process for entering information about a person into the EMR.
Proposed new §561.9, Removing Information from the EMR, describes the circumstances and process by which information about a person is removed from the EMR.

Adopted Rules Re:

Amending 1 TAC §354.1941 and §354.1942 to increase transparency in the Texas Drug Utilization Review Board (DUR Board) conflict-of-interest provisions.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER F. PHARMACY SERVICES
DIVISION 8. DRUG UTILIZATION REVIEW BOARD
1 TAC §354.1941, §354.1942

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §354.1941, concerning Drug Utilization Review Board, and §354.1942, concerning Conflict of Interest Policy.

The amendment to §354.1942 is adopted with changes to the proposed text as published in the July 16, 2021, issue of the Texas Register (46 Tex Reg 4246). This rule will be republished. The amendment to §354.1941 is adopted without changes to the proposed text as published in the July 16, 2021, issue of the Texas Register (46 Tex Reg 4246). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to increase transparency in the Texas Drug Utilization Review Board (DUR Board) conflict-of-interest provisions related to financial and other relationships DUR Board members may have with drug manufacturers that have business before the DUR Board. In Texas, the DUR Board makes recommendations about designating drugs as preferred or non-preferred on the Medicaid Preferred Drug List (PDL) and suggestions regarding clinical prior authorization criteria. Drugs with a non-preferred PDL status require prior authorization.

These amendments increase transparency by requiring DUR Board members to disclose financial relationships with drug manufacturers or labelers with products before the DUR Board, minimize the opportunity for pharmaceutical manufacturers or labelers to influence a member of the DUR Board when making recommendations about the PDL, and increase public confidence in DUR Board decisions.

Other amendments ensure DUR Board membership aligns with the Social Security Act §1927(g)(3) and Texas Government Code §531.0736; define terms; and align language with state and federal definitions.

Amending 26 TAC §§554.300, 554.301, 554.310, 554.311, 554.313 – 554.317, 554.321, 554.322, 554.326, 554.330, 554.332, 554.336, 554.337, 554.339, 554.340, 554.345, 554.361, 554.1001, 554.1207, and 554.1601 to update rules related to nursing facility construction.

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER D. FACILITY CONSTRUCTION
26 TAC §§554.300, 554.301, 554.310, 554.311, 554.313 – 554.317, 554.321, 554.322, 554.326, 554.330, 554.332, 554.336, 554.337, 554.339, 554.340, 554.345, 554.361, 554.1001, 554.1207, 554.1601

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts amendments to §§554.300, 554.301, 554.310, 554.311, 554.313 – 554.317, 554.321, 554.322, 554.326, 554.330, 554.332, 554.336, 554.337, 554.339, 554.340, 554.345, 554.361, 554.1001, 554.1207, and 554.1601 in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 554, Nursing Facility Requirements for Licensure and Medicaid Certification.

The amendments to §§554.321, 554.339, 554.340, 554.345, 554.361, and 554.1207 are adopted with changes to the proposed text as published in the July 16, 2021, issue of the Texas Register (46 Tex Reg 4271). These rules will be republished.

The amendments to §§554.300, 554.301, 554.310, 554.311, 554.313 – 554.317, 554.322, 554.326, 554.330, 554.332, 554.336, 554.337, 554.1001, and 554.1601 are adopted without changes to the proposed text as published in the July 16, 2021, issue of the Texas Register (46 Tex Reg 4271) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments to §§554.300, 554.301, 554.310, 554.311, 554.313 – 554.317, 554.321, 554.322, 554.326, 554.330, 554.332, 554.336, 554.337, 554.339, 554.340, 554.345, and 554.361 update facility fire marshal inspection requirements, correct incorrect rule cross-references, and amend other facility construction requirements for clarity and consistency. The changes to facility construction regulations enhance clarity and consistency for nursing facilities.

The amendments to §554.1001 require a nursing facility to provide annual infection control training for nurse aides. The changes to in-service training requirements help protect nursing facility residents from infections.

The amendments to §554.1207 and §554.1601 implement House Bill (H.B.) 1848 and H.B. 2050, 86th Legislature, Regular Session, 2019. H.B. 1848 requires nursing facilities to have an infection prevention and control program that monitors key infectious agents, including multi-drug resistant organisms, and includes procedures for making rapid influenza tests available to residents. H.B. 2050 specifies that consent to the prescription of an antipsychotic or neuroleptic medication for a nursing facility resident must be given in writing on an HHSC-prescribed form. Consent must be given by the resident or a resident’s authorized representative, and the nursing facility must file the consent form in the resident’s clinical record. The revisions requiring written documentation of a resident’s consent to antipsychotic or neuroleptic medication will hold nursing facilities to a greater degree of accountability and further permit residents greater understanding of the medications they are consenting to receive.

The amendments also update references that became outdated when 40 TAC Chapter 19 was administratively transferred to 26 TAC Chapter 554, reflect the transfer of functions from the Texas Department of Human Services or the Texas Department of Aging and Disability Services to HHSC, update terminology, and remove outdated references.

New 26 TAC §556.100, outlining the staffing process for Nurse Aides.

CHAPTER 556. NURSE AIDES
26 TAC §556.100

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 556, Nurse Aides, new §556.100, concerning Nurse Aide Transition from Temporary Status.

New §556.100 is adopted without changes to the proposed text as published in the September 10, 2021, issue of the Texas Register (46 Tex Reg 5738). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

Because of the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) waived federal requirements prohibiting nursing facilities from employing anyone for longer than four months unless the person meets the training and certification requirements under 42 Code of Federal Regulations (CFR) §483.35(d). The Office of the Governor approved a corresponding suspension of state regulations. On April 9, 2020, HHSC issued a provider letter (PL 20-26) related to the governor’s approval to suspend provisions prohibiting a nursing facility from hiring a non-certified nurse aide to complete nurse aide tasks for longer than four months. The suspension was intended to provide flexibility in staffing during the COVID-19 public health emergency issued by the United States Secretary of Health and Human Services (COVID-19 public health emergency). The waiver did not suspend the requirements for supervision, competency, employee misconduct registry verification, or criminal background checks (Texas Health and Safety Code Chapter 250).

Under this waiver, nursing facilities have employed and trained numerous staff to complete nurse aide tasks who are not certified nurse aides. Once this waiver is no longer available, either through the termination of the emergency declaration or through other means, the staff completing these tasks will no longer be able to do so unless they have become certified as nurse aides. To ensure continued staffing at nursing facilities, a transition plan needs to be in place.

The individuals at issue have been trained as nurse aides and have been completing nurse aide tasks under the current waiver. To provide individuals with credit for this experience, the proposed rule will allow time trained and time worked at a nursing facility during the pandemic (work training and experience) to be counted as classroom and clinical training hours required as part of a Nurse Aide Training and Competency Evaluation Program (NATCEP).

Under current regulations, the training provided by a NATCEP must be associated with a nursing facility that meets the requirements of 42 CFR §483.151(b)(2) – (3). This requirement is included in 26 TAC §556.3(e). State regulations provide a waiver for this requirement under certain circumstances, but only for nursing facilities prohibited from providing a NATCEP when another NATCEP is not available within a reasonable distance from the facility employing the individual. In the current pandemic, no nursing facility was a “reasonable” distance from another, considering the risk of exposure to COVID-19 posed to facility residents by non-employees or by non-essential visitors of their facility.

To provide a path for certification of nurse aides who have been working in nursing facilities under the waiver of training requirements during the COVID-19 public health emergency, HHSC adopted a new emergency rule on May 19, 2021, which was extended on September 16, 2021. This emergency rule allowed time trained and time worked in a nursing facility during the COVID-19 public health emergency to be counted as classroom and clinical hours required as part of a NATCEP. The purpose of the adopted new section is to ensure continued staffing at nursing facilities by adopting into permanent rule the process established under the May 19, 2021, emergency rule.

Amending 26 TAC §§557.101, 557.107, 557.109, 557.113, 557.115, 557.119, 557.121, 557.123, 557.128, 557.129, to clarify the administrative requirements for medication aides.

CHAPTER 557. MEDICATION AIDES–PROGRAM REQUIREMENTS
26 TAC §§557.101, 557.107, 557.109, 557.113, 557.115, 557.119, 557.121, 557.123, 557.128, 557.129

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to Texas Administrative Code (TAC), Title 26, Part 1, Chapter 557, Medication Aides–Program Requirements, amendments to §557.101, concerning Introduction; §557.107, concerning Training Requirements; Nursing Graduates; Reciprocity; §557.109, concerning Application Procedures; §557.113, concerning Determination of Eligibility; §557.115, concerning Permit Renewal; §557.119, concerning Training Program Requirements; §557.121, concerning Permitting of Persons with Criminal Backgrounds; §557.123, concerning Violations, Complaints, and Disciplinary Actions; §557.128, concerning Home Health Medication Aides; and §557.129, concerning Alternate Licensing Requirements for Military Services.

The amendments to §§557.101, 557.107, 557.109, 557.113, 557.115, 557.119, 557.121, 557.128, and 557.129 are adopted without changes to the proposed text as published in the September 10, 2021, issue of the Texas Register (46 Tex Reg 5740). These rules will not be republished. Section 557.123 is adopted with non-substantive changes and will be republished.

BACKGROUND AND JUSTIFICATION

The adopted amendments are necessary to comply with the implementation of House Bill (H.B.) 1342 and Senate Bill (S.B.) 1200, 86th Legislature, Regular Session, 2019; and H.B. 139, 87th Legislature, Regular Session, 2021. H.B. 1342 eliminates certain grounds for disqualification for an occupational license based on prior criminal convictions that are unrelated to the duties and responsibilities of an occupational license. S.B. 1200 allows for military spouses who have occupational licensing from other states to engage in that occupation without obtaining an additional license by notifying the applicable state agency. H.B. 139 clarifies S.B. 1200 to include the Space Force as a branch of military and that a permanent change of station order may be used to establish Texas residency.

The adopted amendments require medication aides to submit fingerprints to the Texas Department of Public Safety for a criminal background check and clarify the utilization of online courses in medication aide training programs.

The adopted amendments also update rule references that became outdated as a result of the administrative transfer of rules in 40 TAC Chapter 19 to 26 TAC Chapter 554, update terminology, and remove outdated references for clarity and consistency.

In Addition Re:

Public Notice: Texas State Plan for Medical Assistance Amendment – Adult Mental Health §1915(i) Home and Community-based Services (HCBS) State Plan Benefit

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit transmittal number 21-0053 to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act.

The Centers for Medicare and Medicaid Services has approved the Adult Mental Health §1915(i) HCBS State Plan benefit through August 31, 2025. The requested effective date for this proposed amendment is October 1, 2021. The proposed amendment is estimated to have no fiscal impact.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed amendment is to make the following changes to the Quality Improvement Strategy for the benefit:

Modification of certain quality measures, as described below
Modification of timeframes for monitoring reviews from annual to biennial reviews and including desk reviews in addition to onsite reviews to obtain data for quality monitoring purposes

The amendment proposes to remove the following quality measures:

Number and percent of participants with services delivered in the Individual Recovery Plan (IRP), including the type, scope, amount, duration, and frequency specified in the service plan.
Number and percent of enrolled HCBS provider agencies serving HCBS clients (by provider type).
Number and percent of providers that have payment recouped for HCBS services without supporting documentation.

The amendment proposes to replace current quality measures with new measures as follows:

Current measure:

Number and percent of HCBS providers who meet training requirements for delivering HCBS services.

New proposed measure:

Number and percent of HCBS required trainings completed by providers.

Current measure:

Number and/or percent of claims verified through the HHSC compliance audit to have paid in accordance with the participant’s IRP.

New proposed measure:

Number and percent of paid claims that reflect only the services listed in accordance with the participant’s IRP.

ADDITIONAL INFORMATION

Interested parties may obtain additional information and/or a free copy of the proposed amendment by contacting Shae James, State Plan Coordinator/Tribal Liaison, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711 and by e-mail at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposed amendment will be available for review at the local county offices of the Texas Health and Human Services Commission (which were formerly the local offices of the Department of Aging and Disability Services).

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

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit transmittal number 21-0049 to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed amendment is to specify the mechanism that HHSC will use to ensure certain statutory minimum requirements for non-emergency medical transportation (NEMT) providers and drivers are satisfied. The proposed amendment implements Section 1902(a)(87) of the Social Security Act.

The proposed amendment is estimated to have no fiscal impact. The requested effective date for the proposed amendment is December 1, 2021.

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

State Board of Dental Examiners

Proposed Rules Re:

Amending 22 TAC §107.204 to establish the timing requirements for the issuance of remedial plans to resolve the investigation of a complaint.

CHAPTER 107. DENTAL BOARD PROCEDURES
SUBCHAPTER C. DISPOSITION OF COMPLAINTS
22 TAC §107.204

OVERVIEW

The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §107.204, concerning the issuance of remedial plans to resolve the investigation of a complaint. The proposed amendment establishes when multiple remedial plans may be issued to a licensee and when a remedial plan may be removed from the Board’s public website. The rule is proposed in accordance with Senate Bill 1534 of the 87th Texas Legislature, Regular Session (2021), and Chapter 263, Texas Occupations Code.

Adopted Rules Re:

Amending 22 TAC §101.14 to describe what a military spouse must submit to establish residency in Texas.

CHAPTER 101. DENTAL LICENSURE
22 TAC §101.14

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §101.14, concerning exemption from licensure for certain military spouses. The adopted amendment lists what a military spouse must submit to establish residency in Texas, and the rule is adopted in accordance with House Bill 139 of the 87th Texas Legislature, Regular Session (2021), and Chapter 55, Texas Occupations Code. This amendment is adopted without changes to the proposed text as published in the October 15, 2021, issue of the Texas Register (46 Tex Reg 7014). The rule will not be republished.

Amending 22 TAC §103.10 to list what a military spouse must submit to establish residency in Texas.

CHAPTER 103. DENTAL HYGIENE LICENSURE
22 TAC §103.10

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §103.10, concerning exemption from licensure for certain military spouses. The adopted amendment lists what a military spouse must submit to establish residency in Texas, and the rule is adopted in accordance with House Bill 139 of the 87th Texas Legislature, Regular Session (2021), and Chapter 55, Texas Occupations Code. This amendment is adopted with no changes to the proposed text as published in the October 15, 2021, issue of the Texas Register (46 Tex Reg 7015). The rule will not be republished.

New 22 TAC §108.74, outlining minimum requirements relating to a dentist’s provision of call coverage services for another dentist’s established patients.

CHAPTER 108. PROFESSIONAL CONDUCT
SUBCHAPTER E. BUSINESS PROMOTION
22 TAC §108.74

OVERVIEW

The State Board of Dental Examiners (Board) adopts this new rule 22 TAC §108.74, concerning call coverage agreements. The adopted rule sets forth minimum requirements relating to a dentist’s provision of call coverage services for another dentist’s established patients, and is implemented pursuant to House Bill 2056 of the 87th Texas Legislature, Regular Session (2021), and Chapter 254, Texas Occupations Code. This rule is adopted with no changes to the proposed text as published in the October 15, 2021, issue of the Texas Register (46 Tex Reg 7016). The rule will not be republished.

Texas Board of Nursing

Proposed Rules Re:

Amending 22 TAC §223.1 to decrease the examination fee for vocational and registered nurse applicants from $75 to $50.

CHAPTER 223. FEES
22 TAC §223.1

OVERVIEW

The Texas Board of Nursing (Board) proposes amendments to §223.1, relating to Fees. The amendments are being proposed under the authority of the Occupations Code §301.151 and §301.155.

Proposed amended §223.1(a)(1) decreases the examination fee for vocational and registered nurse applicants from $75 to $50.

BACKGROUND AND JUSTIFICATION

The General Appropriations Act, 87th Regular Legislative Session, passed a budget for the Board for the 2022 – 2023 biennium. Specifically, in Article VIII, Section 2, it limits the Board appropriation to revenue collections. The Board anticipates a revenue surplus for the 2022 – 2023 biennium and proposes to reduce fees to limit revenue collection to align with the approved budget. The proposed amendment is necessary to meet the budgetary requirements of the legislature.

Texas State Board of Pharmacy

Proposed Rules Re:

Amending 22 TAC §283.4 to update licensing and internship requirements for pharmacists.

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS
22 TAC §283.4

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §283.4, concerning Internship Requirements. The amendments, if adopted, specify that a person may not have previously failed the NAPLEX or Texas Pharmacy Jurisprudence Examination to be designated an extended-intern as a resident in a residency program accredited by the American Society of Health-System Pharmacists and correct grammatical errors.

Amending 22 TAC §291.29 to establish requirements for determining a valid prescription issued as a result of teledentistry dental services.

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS
SUBCHAPTER A. ALL CLASSES OF PHARMACIES
22 TAC §291.29

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §291.29, concerning Professional Responsibility of Pharmacists. The amendments, if adopted, establish the determination of a valid prescription issued as a result of teledentistry dental services, in accordance with House Bill 2056, or telemedicine medical services.

Amending 22 TAC §291.34 to extend the time period for a pharmacist to dispense prescription drug orders for Schedule II controlled substances issued by a practitioner in another state.

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS
SUBCHAPTER B. COMMUNITY PHARMACY (CLASS A)
22 TAC §291.34

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §291.34, concerning Records. The amendments, if adopted, will extend the time period for a pharmacist to dispense prescription drug orders for Schedule II controlled substances issued by a practitioner in another state to the end of the thirtieth day after the date the prescription is issued to be consistent with federal law and correct a citation reference.

Withdrawn Rules Re:

Withdrawing 22 TAC §291.36, which proposed the creation of class designations for certain community pharmacies.

CHAPTER 291. PHARMACIES
SUBCHAPTER B. COMMUNITY PHARMACY (CLASS A)
22 TAC §291.36

The Texas State Board of Pharmacy withdraws the proposed amended §291.36, which appeared in the September 24, 2021, issue of the Texas Register (46 Tex Reg 6343).

Withdrawing 22 TAC §291.77, which proposed the creation of class designations for certain institutional or ASC pharmacies.

CHAPTER 291. PHARMACIES
SUBCHAPTER D. INSTITUTIONAL PHARMACY (CLASS C)
22 TAC §291.77

The Texas State Board of Pharmacy withdraws the proposed amended §291.77, which appeared in the September 24, 2021, issue of the Texas Register (46 Tex Reg 6344).

Withdrawing 22 TAC §291.106, which proposed the creation of class designations for certain non-resident pharmacies.

CHAPTER 291. PHARMACIES
SUBCHAPTER F. NON-RESIDENT PHARMACY (CLASS E)
22 TAC §291.106

The Texas State Board of Pharmacy withdraws the proposed amended §291.106, which appeared in the September 24, 2021, issue of the Texas Register (46 Tex Reg 6347).

Withdrawing 22 TAC §291.131, which proposed updated requirements for individuals engaged in certain non-sterile compounding.

CHAPTER 291. PHARMACIES
SUBCHAPTER G. SERVICES PROVIDED BY PHARMACIES
22 TAC §291.131

The Texas State Board of Pharmacy withdraws the proposed amended §291.131, which appeared in the September 24, 2021, issue of the Texas Register (46 Tex Reg 6350).

Department of Aging and Disability Services

Proposed Rules Re:

Repealing 40 TAC §§93.1 – 93.9 to relocate the Employee Misconduct Registry (EMR) rules from 40 TAC Chapter 93 to 26 TAC Chapter 561.

CHAPTER 93. EMPLOYEE MISCONDUCT REGISTRY (EMR)
40 TAC §§93.1 – 93.9

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of Title 40, Part 1, Chapter 93, of the Texas Administrative Code (TAC), concerning Employee Misconduct Registry. The repeal comprises §§93.1 – 93.9.

BACKGROUND AND JUSTIFICATION

The purpose of this proposal is to repeal 40 TAC Chapter 93. The Employee Misconduct Registry (EMR) rules will be updated and relocated from 40 TAC Chapter 93 to 26 TAC Chapter 561. The relocation of the rules is necessary to implement Senate Bill 200, 84th Legislature, Regular Session, 2015, which transferred the functions of the legacy Department of Aging and Disability Services (DADS) to HHSC, effective September 1, 2017. The new rules are proposed elsewhere in this issue of the Texas Register and are substantially the same as the rules proposed for repeal.

SECTION-BY-SECTION SUMMARY

The proposed repeal of 40 TAC Chapter 93 allows similar rules to be proposed as new in 26 TAC Chapter 561.

Department of State Health Services

Adopted Rules Re:

Amending 25 TAC §229.261 to revise the administrative penalty level ranges.

CHAPTER 229. FOOD AND DRUG
SUBCHAPTER P. ASSESSMENT OF ADMINISTRATIVE PENALTIES
25 TAC §229.261

OVERVIEW

The 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 §229.261, concerning Assessment of Administrative Penalties. The amendment to §229.261 is adopted without changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6192). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The adoption revises the administrative penalty level ranges to facilitate transparent and efficient compliance actions. DSHS developed penalty matrices to provide flexibility in assessing administrative penalties within food and drug programs. The rule revision adjusts penalty levels and merely expands the minimum end of the penalty range.

The rule currently provides a set of ranges for administrative penalties based on the severity level for food and drug programs as well as tattoo and body-piercing studios. The adoption revises the penalty range by stating that penalties can be assessed up to the maximum amount provided in each severity level. This change alleviates any conflicts with the rule that may arise when assessing administrative penalties using the penalty matrices.

Additional amendments removed two programs that are no longer DSHS’s jurisdiction, corrected grammar, and formatted the rule.

Texas Department of Licensing and Regulation

Adopted Rules Re:

Amending 16 TAC §111.2 to update general provisions for speech-language pathologists and audiologists.

CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
SUBCHAPTER A. GENERAL PROVISIONS
16 TAC §111.2

OVERVIEW

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 111, Subchapter A, §111.2; Subchapter E, §111.41; Subchapter F, §111.50 and §111.51; Subchapter J, §111.91 and §111.92; and Subchapter V, §111.210 and §111.211; adopts a new rule at Subchapter V, §111.212; and adopts the repeal of existing rules at Subchapter V, §§111.212 – 111.216, and Subchapter X, §§111.230 – 111.232, regarding the Speech-Language Pathologists and Audiologists Program, without changes to the proposed text as published in the September 10, 2021, issue of the Texas Register (46 TexReg 5698). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 111 implement Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists; Chapter 51, the enabling statute of the Commission and the Texas Department of Licensing and Regulation (Department); and Chapter 111, Telemedicine and Telehealth.

The adopted rules implement the telehealth emergency rules on a permanent basis; implement SB 40, 87th Legislature, Regular Session (2021); and include changes as a result of the four-year rule review related to telehealth and remote supervision (tele-supervision). The adopted rules also reorganize the current provisions and eliminate duplicative provisions.

Amending 16 TAC §111.41 to clarify requirements for intern in speech-language pathology licenses.

CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
SUBCHAPTER E. REQUIREMENTS FOR INTERN IN SPEECH-LANGUAGE PATHOLOGY LICENSE
16 TAC §111.41

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 16 TAC §111.50 and §111.51 to update requirements for assistant in speech-language pathology licenses.

CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
SUBCHAPTER F. REQUIREMENTS FOR ASSISTANT IN SPEECH-LANGUAGE PATHOLOGY LICENSE
16 TAC §111.50, §111.51

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 16 TAC §111.91 and §111.92 to clarify requirements for assistant in audiology licenses.

CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
SUBCHAPTER J. REQUIREMENTS FOR ASSISTANT IN AUDIOLOGY LICENSE
16 TAC §111.91, §111.92

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 16 TAC §§111.210 – 111.216 to update rules related to telehealth.

CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
SUBCHAPTER V. TELEHEALTH
16 TAC §§111.210 – 111.216

OVERVIEW

BACKGROUND AND JUSTIFICATION

Repealing 16 TAC §§111.230 – 111.232, which related to the fitting and dispensing of hearing instruments by telepractice.

CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
SUBCHAPTER X. JOINT RULES FOR FITTING AND DISPENSING OF HEARING INSTRUMENTS BY TELEPRACTICE
16 TAC §§111.230 – 111.232

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 16 TAC §115.14 and §115.115 to update standards for midwives.

CHAPTER 115. MIDWIVES
16 TAC §115.14, §115.115

OVERVIEW

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 115, §115.14 and §115.115, regarding the Midwives Program, without changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6187). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The adopted rules add specific uterine and fetal heart rate conditions to the list of conditions during labor or delivery that require a midwife to initiate immediate emergency transfer of a client to a physician. The adopted rules provide standards for assessing fetal heart rates by intermittent auscultation and require midwives to complete two hours of continuing education covering the topic as a condition for license renewal. These changes are necessary to implement recommendations of the Standard of Care workgroup of the Midwives Advisory Board to clarify the standards of care for midwives and ensure that all midwives possess the knowledge and skills necessary to meet the standards.

The adopted rules also provide an audit system for reporting completion of continuing education for license renewal and make other clean-up changes to the license renewal provisions. These changes are necessary to implement recommendations by Department staff to improve the effectiveness and efficiency of the program.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §115.14, License Renewal, by rephrasing subsection (a) for clarity; removing from subsection (a)(1) unnecessary details about the application form; rephrasing subsection (a)(2) for clarity; adding language to subsection (a)(4) to allow the Department to accept an equivalent to the neonatal resuscitation certificate issued by the American Academy of Pediatrics; rephrasing subsection (a)(5) for consistency with other fee references; changing the punctuation in subsection (a)(6); adding new subsection (a)(7) to relocate the requirement for human trafficking prevention training from subsection (b); adding to subsection (b) a new license renewal requirement of two hours of continuing education covering the topic of assessing fetal heart rates by intermittent auscultation; adding new subsection (c) to provide an audit system for reporting completion of continuing education; and adding new subsection (d) to provide the process for the audit system and the responsibilities of licensees.

The adopted rules amend §115.115, Labor and Delivery, by rephrasing and expanding subsection (e)(6) to provide clarity and list specific examples of fetal heart rate conditions that require immediate emergency transfer of the client to a physician; adding to subsection (e)(16) “uterine tachysystole” as a condition requiring immediate emergency transfer of the client to a physician; relocating the language in current subsection (e)(16) to adopted new subsection (e)(17); and adding new subsection (f) to require intermittent auscultation to be performed as recommended by the American College of Nurse-Midwives.