Texas Register December 31, 2021 Volume: 46 Number: 53

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed three individuals to the Task Force on Infectious Disease Preparedness and Response and three individuals to the Texas State Board of Pharmacy.
2 Health and Human Services Commission
3 Department of Aging and Disability Services
- - 3.0.1 Emergency Rules Re:
    - 3.0.1.1 Renewing 40 TAC §9.198 and §9.199 to outline HCS program requirements relating to visitation, essential caregivers, and day habilitation in response to the ongoing pandemic.
4 Department of State Health Services
5 Department of Assistive and Rehabilitative Services
- - 5.0.1 Transferred Rules Re:
    - 5.0.1.1 Transferring former DARS rules in Texas Administrative Code (TAC), Title 40, Part 2, Chapter 107, Division for Rehabilitation Services, Subchapter D, Comprehensive Rehabilitation Services to 26 TAC Part 1, Chapter 352, Comprehensive Rehabilitation Services.

The Governor

Appointments Re:

The Governor appointed three individuals to the Task Force on Infectious Disease Preparedness and Response and three individuals to the Texas State Board of Pharmacy.

Appointments for December 15, 2021:

Appointed to the Task Force on Infectious Disease Preparedness and Response, for a term to expire at the pleasure of the Governor:

Duke Appiah, Ph.D. of Lubbock, Texas (Dr. Appiah is appointed pursuant to SB 984, 87th Legislature, Regular Session).
John B. Scott of Fort Worth, Texas (replacing Ruth Ruggero Hughs of Austin).
Marc D. Williams of Austin, Texas (replacing James M. Bass of Austin).

Appointments for December 20, 2021:

Appointed to the Texas State Board of Pharmacy, for a term to expire August 31, 2027:

Ian N. Shaw of Dallas, Texas (replacing Isaac L. “Chip” Thornsburg of Hondo, whose term expired).
Rebecca “Suzette” Tijerina of Castle Hills, Texas (Ms. Tijerina is being reappointed).
Jennifer D. “Jenny” Yoakum of Kilgore, Texas (Ms. Yoakum is being reappointed).

Health and Human Services Commission

Emergency Rules Re:

Renewing 26 TAC §553.2003 to require limited indoor and outdoor visitation in an assisted living facility.

CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
SUBCHAPTER K. COVID-19 EMERGENCY RULE
26 TAC §553.2003

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency new §553.2003 for a 60-day period. The text of the emergency rule was originally published in the September 3, 2021, issue of the Texas Register (46 Tex Reg 5483).

HHSC is renewing an emergency rule to require limited indoor and outdoor visitation in an assisted living facility. The purpose of the new rule is to describe the requirements related to such visits.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing if it finds 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 this emergency rule for Assisted Living Facility COVID-19 Response–Expansion of Reopening Visitation.

Adopted Rules Re:

Amending 26 TAC §306.192 to update rules relating to the transfer of an individual from a state-supported living center to a state hospital.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER D. MENTAL HEALTH SERVICES–ADMISSION, CONTINUITY, AND DISCHARGE
DIVISION 4. TRANSFERS AND CHANGING LOCAL MENTAL HEALTH AUTHORITIES OR LOCAL BEHAVIORAL HEALTH AUTHORITIES
26 TAC §306.192

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §306.192, concerning Transfers Between a State Mental Health Facility and a State Supported Living Center. The amendment of §306.192 is adopted without changes to the proposed text as published in the September 10, 2021, issue of the Texas Register (46 Tex Reg 5737). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment to §306.192 removes references to 25 TAC §412.272 and adds a reference to 26 TAC §902.1, relating to Transfer of an Individual from a State Supported Living Center to a State Hospital. Other edits are made for clarity and consistency.

New 26 TAC §506.38, prohibiting a special care facility from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 506. SPECIAL CARE FACILITIES
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
26 TAC §506.38

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §506.38, concerning Miscellaneous Policies and Protocols.

New §506.38 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6880). This rule will not be republished.

New §506.38 adds language prohibiting a special care facility from discriminating against an organ transplant recipient based on the patient’s disability and requiring a special care facility to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

BACKGROUND AND JUSTIFICATION

The new section is necessary to comply with House Bill (H.B.) 119, 87th Legislature, Regular Session, 2021, which requires HHSC to adopt rules prohibiting health care facilities and providers from discriminating against an organ transplant recipient based on a patient’s or client’s disability.

New 26 TAC §509.68, adding language to prohibit a freestanding emergency medical care facility (FEMC) from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
26 TAC §509.68

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §509.68, concerning Miscellaneous Policies and Protocols.

New §509.68 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6882). This rule will not be republished.

New §509.68 adds language prohibiting a freestanding emergency medical care facility (FEMC) from discriminating against an organ transplant recipient based on the patient’s disability and requiring an FEMC to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §510.44 to prohibit a private psychiatric hospital or crisis stabilization unit (CSU) from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 510. PRIVATE PSYCHIATRIC HOSPITALS AND CRISIS STABILIZATION UNITS
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
26 TAC §510.44

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §510.44, concerning Miscellaneous Policies and Protocols.

Amended §510.44 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6883). This rule will not be republished.

The amendment to §510.44 adds language prohibiting a private psychiatric hospital or crisis stabilization unit (CSU) from discriminating against an organ transplant recipient based on the patient’s disability and requiring private psychiatric hospitals and CSUs to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

BACKGROUND AND JUSTIFICATION

The amendment is necessary to comply with House Bill (H.B.) 119, 87th Legislature, Regular Session, 2021, which requires HHSC to adopt rules prohibiting health care facilities and providers from discriminating against an organ transplant recipient based on a patient’s or client’s disability.

New 26 TAC §902.1, concerning the transfer of an individual from a state-supported living center to a state hospital.

CHAPTER 902. CONTINUITY OF SERVICES–TRANSFERRING INDIVIDUALS FROM STATE SUPPORTED CENTERS TO STATE HOSPITALS
26 TAC §902.1

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §902.1, concerning Transfer of an Individual from a State Supported Living Center to a State Hospital. The new §902.1 is adopted without changes to the proposed text as published in the September 10, 2021, issue of the Texas Register (46 Tex Reg 5759). This rule will not be republished.

New §902.1 provides parameters for the transfer of individuals who have been committed or voluntarily admitted to a state supported living center (SSLC) from an SSLC to a state hospital.

BACKGROUND AND JUSTIFICATION

The new rule reflects the move of the state hospitals from the Department of State Health Services to HHSC by moving an HHSC rule from Texas Administrative Code (TAC) Title 25, Chapter 412, Subchapter F to 26 TAC Chapter 902 to consolidate HHSC rules. The repeal of 25 TAC Chapter 412, Subchapter F is adopted simultaneously elsewhere in this issue of the Texas Register.

Transferred Rules Re:

Transferring DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 61, Chronic Diseases, Subchapter A, Kidney Health Care, to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 365, Kidney Health Care.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, certain functions previously performed by the Department of State Health Services (DSHS), including client services, certain regulatory functions, and the operation of state hospitals, transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. The DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 61, Chronic Diseases, Subchapter A, Kidney Health Care, that are related to these transferred functions, are being transferred to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 365, Kidney Health Care.

The rules will be transferred in the Texas Administrative Code effective January 15, 2022.

A table outlining the rule transfer can be found in this week’s issue of the Texas Register at 46 Tex Reg 9421.

Transferring the former DARS rules in Texas Administrative Code (TAC), Title 40, Part 2, Chapter 107, Division for Rehabilitation Services, Subchapter D, Comprehensive Rehabilitation Services to 26 TAC Part 1, Chapter 352, Comprehensive Rehabilitation Services.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, some agencies were abolished, and their functions transferred to the Texas Health and Human Services Commission (HHSC). Texas Government Code, §531.0202(a), specified the Department of Assistive and Rehabilitative Services (DARS) be abolished September 1, 2017, after all its functions were transferred to HHSC or the Department of Family and Protective Services in accordance with Texas Government Code, §531.0201. The former DARS rules in Texas Administrative Code (TAC), Title 40, Part 2, Chapter 107, Division for Rehabilitation Services, Subchapter D, Comprehensive Rehabilitation Services are being transferred to 26 TAC Part 1, Chapter 352, Comprehensive Rehabilitation Services.

The rules will be transferred in the Texas Administrative Code effective January 15, 2022.

A table outlining the rule transfer can be found in this week’s issue of the Texas Register at 46 Tex Reg 9422.

Proposed Rule Reviews Re:

Reviewing rules contained in Chapter 272 relating to Transition Assistance Services.

The Texas Health and Human Services Commission (HHSC) proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 26, Part 1, of the Texas Administrative Code:

Chapter 272, Transition Assistance Services
Subchapter A Introduction
Subchapter B TAS Provider Requirements
Subchapter C Staff Requirements
Subchapter D Service Delivery Requirements
Subchapter E Claim Payments And Documentation

BACKGROUND AND JUSTIFICATION

This review is conducted in accordance with the requirements of Texas Government Code §2001.039, which requires state agencies, every four years, to assess whether the initial reasons for adopting a rule continue to exist. After reviewing its rules, the agency will readopt, readopt with amendments, or repeal its rules.

Comments on the review of Chapter 272, Transition Assistance Services, may be submitted to HHSC Rules Coordination Office, Mail Code 4102, P.O. Box 13247, Austin, Texas 78711-3247, or by email to HHSRulesCoordinationOffice@hhs.texas.gov. The deadline for comments is on or before 5:00 p.m. central time on the 31st day after the date this notice is published in the Texas Register.

The text of the rule sections being reviewed will not be published, but may be found in Title 26, Part 1, of the Texas Administrative Code or on the Secretary of State’s website at

https://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac_view=4&ti=26&pt=1&ch=272.

In Addition Re:

Notice of Public Hearing on Proposed Medicaid Payment Rates for the Healthcare Common Procedure Coding System (HCPCS) Updates

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on January 12, 2022, at 2:00 p.m., to receive public comments on proposed Medicaid payment rates for the HCPCS Updates.

Due to the declared state of disaster stemming from COVID-19, this hearing will be conducted both in-person and as an online event. To join the hearing from your computer, tablet, or smartphone, register for the hearing in advance using the following link:

https://attendee.gotowebinar.com/register/2693551020086627343

BACKGROUND AND JUSTIFICATION

The hearing will be held in compliance with Texas Human Resources Code §32.0282, which requires public notice of and hearings on proposed Medicaid reimbursements. A recording of the hearing will be archived and can be accessed on demand at https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings.

Members of the public may attend the rate hearing in person, which will be held in the Public Hearing Room 125 in the John H Winters Building located at 701 W 51st Street, Austin, Texas or may access a live stream of the meeting by following the link above. For the live stream, select the “Winters Live” tab.

PROPOSAL DETAILS

The proposed payment rates for the HCPCS Updates will be effective January 1, 2022 for the following topics:

Proposed to be effective January 1, 2022: 2021 Q3 HCPCS Updates:

Blood – TOS 0 (Blood);
Physician Administered Drugs – TOS 1 (Medical Service); and
Durable Medical Equipment, Prosthetics, Orthotics, and Supplies – TOS 9 (Other Medical Items or Services).

Proposed to be effective January 1, 2022: 2022 Annual HCPCS Updates:

Physician Administered Drugs – Type of Service (TOS) 1 (Medical Services);
Surgery, Assistant Surgery Services – TOS 2 (Surgery Services), and TOS 8 (Assistant Surgery);
Consultation – TOS 3 (Consultation);
Radiological Services – TOS 4 (Radiology), TOS I (Professional Component), and TOS T (Technical Component);
Clinical Diagnostic Laboratory Services – TOS 5 (Laboratory);
Anesthesia – TOS 7 (Anesthesia);
Durable Medical Equipment, Prosthetics, Orthotics, and Supplies – TOS 9 (Other Medical Items or Services), TOS J (DME Purchase-New), and TOS L (DME Rental-Monthly);
Ambulatory Surgical Center – TOS F (Ambulatory Surgical Center and Hospital-based Ambulatory Surgical Center); and
Dental Services – TOS W (Texas Health Steps Dental/Orthodontia).

A briefing packet describing the proposed payment rates will be made available at https://pfd.hhs.texas.gov/rate-packets on or after January 2, 2022. Interested parties may obtain a copy of the briefing packet on or after that date by contacting Provider Finance by telephone at (512) 730-7401; by fax at (512) 730-7475; or by e-mail at PFDAcuteCare@hhs.texas.gov.

Written comments regarding the proposed payment rates may be submitted in lieu of, or in addition to, oral testimony until 5 p.m. the day of the hearing. Written comments may be sent by U.S. mail to the Texas Health and Human Services Commission, Attention: Provider Finance, Mail Code H-400, P.O. Box 149030, Austin, Texas 78714-9030; by fax to Provider Finance at (512) 730-7475; or by e-mail to PFDAcuteCare@hhs.texas.gov. In addition, written comments may be sent by overnight mail to Texas Health and Human Services Commission, Attention: Provider Finance, Mail Code H-400, North Austin Complex, 4601 Guadalupe St., Austin, Texas 78751.

Notice of Stakeholder Engagement Meetings on Potential Medicaid and Title XX Payment Rates

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct stakeholder engagement meetings on January 27, 2022, to receive comments on the Medicaid and Title XX payment rates that can be addressed at the May 2022 rate hearings. The meetings will begin at 9:00 a.m. CST.

Note: HHSC will not publish proposed rates at this time, and the stakeholder engagement meetings are solely to receive commentary on the topics listed below.

MEETING DETAILS

Due to the declared state of disaster stemming from COVID-19, these meetings will be conducted online only.

The stakeholder engagement meetings will be held as follows:

Acute Care Services: January 27, 2022, 9:00 – 11:00 a.m.
Hospital Services: January 27, 2022, 12:30 – 2:30 p.m.
Long-Term Services & Supports: January 27, 2022, 3:00 – 5:00 p.m.

HHSC may limit speakers’ time to ensure all attendees wishing to present public comment are afforded an opportunity to do so.

HHSC reserves the right to end an engagement meeting if no participants have registered to present public comments within the first 30 minutes of the meeting.

Please register for HHSC Provider Finance Department Stakeholder Engagement Meetings on January 27, 2022, at:

https://attendee.gotowebinar.com/register/6116977230038797067

TOPICS SUMMARY

The topics for the Stakeholder Engagement Meetings are below. Please note that the topics listed in this notice comprise a provisional list of topics to be presented at the May 2022 rate hearing. The final list of topics to be presented at the May 2022 rate hearing is at the discretion of HHSC.

Acute Care Services

Calendar Fee Review

— Ambulance

— Birthing Centers

— Cardiovascular System Surgery

— Dental Services

— Digestive System Surgery

— Family Planning

— Female Genital System Surgery

— Indian Health Services

— Nervous System Surgery

— Physician Administered Drugs – Discontinued National Drug Codes (NDCX)

— Physician Administered Drugs – Non-Oncology

— Physician Administered Drugs – Oncology

— Physician Administered Drugs – Vaccines & Toxoids

— Proton Therapy Codes

— Respiratory System Surgery

— Urinary System Surgery

— Vision Devices

— “G” Codes Acute Care and Hospitals

— “K” Codes

— “T” Codes

Medical Policy Review

— THSTEPS Medical Checkup

HCPCS

— Quarterly Healthcare Common Procedure Coding System (HCPCS) Updates

Hospital Services

Rural Health Clinic Reimbursement (Title 1 Texas Administrative Code section 355.8101)

Long-Term Services & Supports (LTSS)

Community Living Assistance and Support Services (CLASS) Waiver Program

— Community First Choice (CFC) CLASS Financial Management Services (FMS) Fee

— CLASS FMS Fee

Title XX Consumer Managed Personal Attendant Services (CMPAS)

— CMPAS FMS Fee

Deaf Blind with Multiple Disabilities (DBMD) Waiver Program

— CFC DBMD FMS Fee

— DBMD FMS Fee

Home and Community-based Services (HCS)

— CFC HCS FMS Fee

— HCS FMS Fee

Primary Home Care (PHC)/Community Attendant Services (CAS)/ Title XX Family Care (FC)

— PHC/CAS/FC FMS Fee

STAR Kids

— CFC STAR Kids FMS Fee, non-MDCP

STAR Kids Medically Dependent Children Program (MDCP)

— CFC MDCP FMS Fee

— MDCP FMS Fee

STAR+PLUS

— STAR+PLUS FMS Fee (CDS) (HCBS)

— STAR+PLUS FMS Fee (non-HCBS)

Texas Home Living (TxHmL)

— CFC TxHmL FMS Fee

— TxHmL FMS Fee

Nursing Facilities (NF) Rehabilitation and Therapy

— Occupational Therapy (OT) Rehabilitative Therapy – Assessment

— OT Rehabilitative Therapy – Assessment (Contracted)

— OT Rehabilitative Therapy – Service

— OT Rehabilitative Therapy – Service (Contracted)

— OT Specialized Therapy – Assessment

— OT Specialized Therapy – Assessment (Contracted)

— OT Specialized Therapy – Service

— OT Specialized Therapy – Service (Contracted)

— Physical Therapy (PT) Rehabilitative Therapy – Assessment

— PT Rehabilitative Therapy – Assessment (Contracted)

— PT Rehabilitative Therapy – Service

— PT Rehabilitative Therapy – Service (Contracted)

— PT Specialized Therapy – Assessment

— PT Specialized Therapy – Assessment (Contracted)

— PT Specialized Therapy – Service

— PT Specialized Therapy – Service (Contracted)

— Speech Therapy (ST) Rehabilitative Therapy – Assessment

— ST Rehabilitative Therapy – Assessment (Contracted)

— ST Rehabilitative Therapy – Service

— ST Rehabilitative Therapy – Service (Contracted)

— ST Specialized Therapy – Assessment

— ST Specialized Therapy – Assessment (Contracted)

— ST Specialized Therapy – Service

— ST Specialized Therapy – Service (Contracted)

A final agenda for the Stakeholder Engagement Meetings will be made available at https://pfd.hhs.texas.gov/provider-finance-communications by January 14, 2022. Interested parties may also obtain a copy of the agenda on or after that date by contacting Provider Finance by telephone at (512) 730-7401; by fax at (512) 730-7475; or by email at ProviderFinanceDept@hhs.texas.gov.

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 28, 2022. Written comments may be sent by U.S. mail, overnight mail, fax, or email.

Department of Aging and Disability Services

Emergency Rules Re:

Renewing 40 TAC §9.198 and §9.199 to outline HCS program requirements relating to visitation, essential caregivers, and day habilitation in response to the ongoing pandemic.

CHAPTER 9. INTELLECTUAL DISABILITY SERVICES–MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
SUBCHAPTER D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)
40 TAC §9.198, §9.199

OVERVIEW

The Department of Aging and Disability Services is renewing the effectiveness of emergency new §9.198 and §9.199 for a 60-day period. The text of the emergency rules was originally published in the September 3, 2021, issue of the Texas Register (46 Tex Reg 5486).

HHSC is renewing emergency rules to reduce the risk of spreading COVID-19 to individuals in the HCS program. These new rules describe the requirements HCS program providers must immediately put into place and the requirements they must follow for visitation, essential caregivers, and day habilitation.

Department of State Health Services

Adopted Rules Re:

New 25 TAC §117.49, prohibiting an end stage renal disease facility (ESRD) from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 117. END STAGE RENAL DISEASE FACILITIES
SUBCHAPTER D. MINIMUM STANDARDS FOR PATIENT CARE AND TREATMENT
25 TAC §117.49

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §117.49, concerning Miscellaneous Policies and Protocols.

New §117.49 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6766). This rule will not be republished.

New §117.49 adds language prohibiting an end stage renal disease facility (ESRD) from discriminating against an organ transplant recipient based on the patient’s disability and requiring an ESRD to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

BACKGROUND AND JUSTIFICATION

Amending 25 TAC §133.45 to add language prohibiting a hospital from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 133. HOSPITAL LICENSING
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
25 TAC §133.45

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §133.45, concerning Miscellaneous Policies and Protocols.

Amended §133.45 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6767). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to comply with House Bill (H.B.) 3721, 87th Legislature, Regular Session, 2021, which requires HHSC to adopt rules requiring abortion facilities and hospitals to comply with the human trafficking signage requirements required by Texas Health and Safety Code §245.025.

The amendments are also necessary to comply with House Bill (H.B.) 119, 87th Legislature, Regular Session, 2021, which requires HHSC to adopt rules prohibiting health care facilities and providers from discriminating against an organ transplant recipient based on a patient’s or client’s disability.

SECTION-BY-SECTION SUMMARY

The amendment to §133.45 adds language requiring hospitals to comply with Texas Health and Safety Code, Chapter 245.025, Human Trafficking Signs Required. This change is consistent with H.B. 3721’s provision requiring HHSC to adopt rules necessary to implement that bill.
The amendment to §133.45 also adds language prohibiting a hospital from discriminating against an organ transplant recipient based on the patient’s disability and requiring a hospital to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

New 25 TAC §135.30, prohibiting an ambulatory surgical center (ASC) from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 135. AMBULATORY SURGICAL CENTERS
SUBCHAPTER A. OPERATING REQUIREMENTS FOR AMBULATORY SURGICAL CENTERS
25 TAC §135.30

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §135.30, concerning Miscellaneous Policies and Protocols.

New §135.30 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6771). This rule will not be republished.

New §135.30 adds language prohibiting an ambulatory surgical center (ASC) from discriminating against an organ transplant recipient based on the patient’s disability and requiring an ASC to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

BACKGROUND AND JUSTIFICATION

Amending 25 TAC §137.55 to add language prohibiting a birthing center from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 137. BIRTHING CENTERS
SUBCHAPTER D. OPERATIONAL AND CLINICAL STANDARDS FOR THE PROVISION AND COORDINATION OF TREATMENT AND SERVICES
25 TAC §137.55

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §137.55, concerning Other State and Federal Compliance Requirements.

Amended §137.55 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6772). This rule will not be republished.

The amendment to §137.55 adds language prohibiting a birthing center from discriminating against an organ transplant recipient based on the patient’s disability and requiring a birthing center to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

BACKGROUND AND JUSTIFICATION

Amending 25 TAC §139.60 to prohibit an abortion facility from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 139. ABORTION FACILITY REPORTING AND LICENSING
SUBCHAPTER D. MINIMUM STANDARDS FOR LICENSED ABORTION FACILITIES
25 TAC §139.60

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §139.60, concerning Other State and Federal Compliance Requirements.

Amended §139.60 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6774). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are also necessary to comply with H.B. 119, 87th Legislature, Regular Session, 2021, which requires HHSC to adopt rules prohibiting health care facilities and providers from discriminating against an organ transplant recipient based on a patient’s or client’s disability.

SECTION-BY-SECTION SUMMARY

The amendment to §139.60 adds language requiring an abortion facility to comply with Texas Health and Safety Code, Chapter 245.025, Human Trafficking Signs Required. This change is consistent with H.B. 3721’s provision requiring HHSC to adopt rules necessary to implement that bill.
The amendment to §139.60 adds language prohibiting an abortion facility from discriminating against an organ transplant recipient based on the patient’s disability and requiring an abortion facility to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

New 25 TAC §140.435, prohibiting a licensed chemical dependency counselor (LCDC), including a counselor intern (CI), from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 140. HEALTH PROFESSIONS REGULATION
SUBCHAPTER I. LICENSED CHEMICAL DEPENDENCY COUNSELORS
25 TAC §140.435

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §140.435, concerning Miscellaneous Policies and Protocols.

New §140.435 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6776). This rule will not be republished.

New §140.435 adds language prohibiting a licensed chemical dependency counselor (LCDC), including a counselor intern (CI), from discriminating against an organ transplant recipient based on the patient’s disability and requiring an LCDC to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

BACKGROUND AND JUSTIFICATION

Amending 25 TAC §229.144 to prohibit a narcotic treatment program (NTP) from discriminating against an organ transplant recipient based on the patient’s disability.

CHAPTER 229. FOOD AND DRUG
SUBCHAPTER J. MINIMUM STANDARDS FOR NARCOTIC TREATMENT PROGRAMS
25 TAC §229.144

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §229.144, concerning State and Federal Statutes and Regulations.

Amended §229.144 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6777). This rule will not be republished.

The amendment to §229.144 adds language prohibiting a narcotic treatment program (NTP) from discriminating against an organ transplant recipient based on the patient’s disability and requiring an NTP to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a patient’s disability.

BACKGROUND AND JUSTIFICATION

Amending 25 TAC §§289.252, 289.256, 289.257 to update license regulations related to proper usage, packaging, and transport of radioactive material.

CHAPTER 289. RADIATION CONTROL
SUBCHAPTER F. LICENSE REGULATIONS
25 TAC §§289.252, 289.256, 289.257

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts amendments to §289.252, concerning Licensing of Radioactive Material; §289.256, concerning Medical and Veterinary Use of Radioactive Material; and §289.257, concerning Packaging and Transportation of Radioactive Material. Sections 289.252, 289.256, and 289.257 are adopted with changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6779) and will be republished.

BACKGROUND AND JUSTIFICATION

The amendments to §§289.252, 289.256, and 289.257 are necessary to comply with compatibility requirements of the United States Nuclear Regulatory Commission (NRC), to which Texas is subject as an Agreement State. The amendments update NRC information and are the result of the NRC’s adoption of rules related to the reporting and notification requirements for a medical event for permanent implant brachytherapy. The amendments update the training for radiation safety officers, associate radiation safety officers, authorized medical physicists, authorized nuclear pharmacists, teletherapy or medical physicists, authorized users, and nuclear pharmacists. The amendments allow associate radiation safety officers to be named on a medical license and several clarifying amendments; and exempt certain board-certified individuals from certain training and experience requirements (i.e., “grandfather” these individuals).

Other amendments to §§289.252, 289.256, and 289.257 clarify terms and conditions of licenses for medical use of radioactive material, establish new definitions, update license application processes, and update facility radiation protection programs. The amendments also include changes to update, correct, improve, or clarify rule citation references, terminology, language and format consistency, grammar, and minor typographical and formatting errors.

Repealing 25 TAC §412.272 to consolidate HHSC rules and reflect the move of governance over state hospitals from the Department of State Health Services (DSHS) to HHSC.

CHAPTER 412. LOCAL MENTAL HEALTH AUTHORITY RESPONSIBILITIES
SUBCHAPTER F. CONTINUITY OF SERVICES–STATE MENTAL RETARDATION FACILITIES
25 TAC §412.272

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts the repeal of §412.272, concerning Transfer of an Individual from a State MR Facility to a State MH Facility. The repeal of §412.272 is adopted without changes to the proposed text as published in the September 10, 2021, issue of the Texas Register (46 Tex Reg 5736). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The repeal reflects the move of the state hospitals from the Department of State Health Services to HHSC by moving an HHSC rule from Texas Administrative Code (TAC) Title 25, Chapter 412, Subchapter F to 26 TAC Chapter 902 to consolidate HHSC rules. The new rule is adopted simultaneously elsewhere in this issue of the Texas Register.

New 25 TAC §448.912, prohibiting a chemical dependency treatment facility (CDTF) from discriminating against an organ transplant recipient based on the client’s disability.

CHAPTER 448. STANDARD OF CARE
SUBCHAPTER I. TREATMENT PROGRAM SERVICES
25 TAC §448.912

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §448.912, concerning Miscellaneous Policies and Protocols.

New §448.912 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 TexReg 6879). This rule will not be republished.

New §448.912 adds language prohibiting a chemical dependency treatment facility (CDTF) from discriminating against an organ transplant recipient based on the client’s disability and requiring a CDTF to comply with Texas Health and Safety Code, Chapter 161, Subchapter S, Allocation of Kidneys and Other Organs Available for Transplant. This change is consistent with the provision in H.B. 119 requiring HHSC to adopt rules relating to prohibiting organ transplant recipient discrimination by health care providers based on a client’s disability.

BACKGROUND AND JUSTIFICATION

Transferred Rules Re:

Transferring the DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 61, Chronic Diseases, Subchapter A, Kidney Health Care to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 365, Kidney Health Care.

OVERVIEW

The rules will be transferred in the Texas Administrative Code effective January 15, 2022.

A table outlining the rule transfer can be found in this week’s issue of the Texas Register at 46 Tex Reg 9421.

In Addition Re:

Licensing Actions for Radioactive Materials

OVERVIEW

During the first half of November 2021, the Department of State Health Services (Department) has taken actions regarding Licenses for the possession and use of radioactive materials as listed in the tables (in alphabetical order by location). The subheading “Location” indicates the city in which the radioactive material may be possessed and/or used. The location listing “Throughout TX [Texas]” indicates that the radioactive material may be used on a temporary basis at locations throughout the state.

Further details can be found in this week’s issue of the Texas Register at 46 Tex Reg 9478.

BACKGROUND AND JUSTIFICATION

In issuing new licenses and amending and renewing existing licenses, the Department’s Business Filing and Verification Section has determined that the applicant has complied with the licensing requirements in Title 25 Texas Administrative Code (TAC), Chapter 289, for the noted action. In granting termination of licenses, the Department has determined that the licensee has complied with the applicable decommissioning requirements of 25 TAC, Chapter 289. In granting exemptions to the licensing requirements of Chapter 289, the Department has determined that the exemption is not prohibited by law and will not result in a significant risk to public health and safety and the environment.

A person affected by the actions published in this notice may request a hearing within 30 days of the publication date. A “person affected” is defined as a person who demonstrates that the person has suffered or will suffer actual injury or economic damage and, if the person is not a local government, is (a) a resident of a county, or a county adjacent to the county, in which radioactive material is or will be located, or (b) doing business or has a legal interest in land in the county or adjacent county. 25 TAC §289.205(b)(15); Health and Safety Code §401.003(15). Requests must be made in writing and should contain the words “hearing request,” the name and address of the person affected by the agency action, the name and license number of the entity that is the subject of the hearing request, a brief statement of how the person is affected by the action what the requestor seeks as the outcome of the hearing, and the name and address of the attorney if the requestor is represented by an attorney. Send hearing requests by mail to: Hearing Request, Radiation Material Licensing, MC 2835, PO Box 149347, Austin, Texas 78714-9347, or by fax to: 512-834-6690, or by e-mail to: RAMlicensing@dshs.texas.gov.

Department of Assistive and Rehabilitative Services

Transferred Rules Re:

Transferring former DARS rules in Texas Administrative Code (TAC), Title 40, Part 2, Chapter 107, Division for Rehabilitation Services, Subchapter D, Comprehensive Rehabilitation Services to 26 TAC Part 1, Chapter 352, Comprehensive Rehabilitation Services.

OVERVIEW

The rules will be transferred in the Texas Administrative Code effective January 15, 2022.

A table outlining the rule transfer can be found in this week’s issue of the Texas Register at 46 Tex Reg 9422.