Texas Register February 4, 2022 Volume: 47 Number: 5

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Proclamation 41-3881 Re:
    - 1.0.1.1 The Governor issues Proclamation 41-3881 to renew the COVID-19 disaster proclamation for all counties in Texas.
2 Department of State Health Services
- - 2.0.1 Emergency Rules Re:
    - 2.0.1.1 Amending 25 TAC §448.603 to temporarily permit a licensed chemical dependency treatment facility (CDTF) to provide certain training to staff through live, interactive, instructor-led, electronic means.
  - 2.0.2 In Addition Re:
    - 2.0.2.1 Texas Department of State Health Services issued its Certification Limited Liability Report, which provided that one non-profit hospital system and eleven non-profit hospitals were certified while nine non-profit hospitals were not certified.
3 Health and Human Services Commission
4 Texas Department of Licensing and Regulation
- - 4.0.1 Proposed Rules Re:
5 Texas Board of Physical Therapy Examiners
- - 5.0.1 Adopted Rules Re:
    - 5.0.1.1 Amending 22 TAC §329.3 to adjust the duration of a temporary license to the issuance of the permanent license.
6 Department of Aging and Disability Services
- - 6.0.1 Adopted Rules Re:

The Governor

Proclamation 41-3881 Re:

The Governor issues Proclamation 41-3881 to renew the COVID-19 disaster proclamation for all counties in Texas.

OVERVIEW

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

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

Department of State Health Services

Emergency Rules Re:

Amending 25 TAC §448.603 to temporarily permit a licensed chemical dependency treatment facility (CDTF) to provide certain training to staff through live, interactive, instructor-led, electronic means.

CHAPTER 448. STANDARD OF CARE
SUBCHAPTER F. PERSONNEL PRACTICES AND DEVELOPMENT
25 TAC §448.603

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 25, Texas Administrative Code, Chapter 448, Standard of Care, an amendment to §448.603, Training, to expand a licensed chemical dependency treatment facility’s (CDTF) ability to provide staff training on abuse, neglect, and exploitation and nonviolent crisis intervention through live, interactive, instructor-led, electronic means in response to COVID-19.

HHSC is adopting an emergency rule amendment to §448.603(d)(1) to temporarily permit a licensed CDTF to provide abuse, neglect, and exploitation training to staff through live, interactive, instructor-led, electronic means to reduce the risk of COVID-19 transmission. HHSC is also adopting an emergency rule amendment to §448.603(d)(4) to temporarily permit a licensed CDTF to provide nonviolent crisis intervention training to staff through live, interactive, instructor-led, electronic means to reduce the risk of COVID-19 transmission. There are no other changes to §448.603.

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 this amendment to §448.603, concerning Training.

In Addition Re:

Texas Department of State Health Services issued its Certification Limited Liability Report, which provided that one non-profit hospital system and eleven non-profit hospitals were certified while nine non-profit hospitals were not certified.

OVERVIEW

The Hospital Survey Program in the Center for Health Statistics, Texas Department of State Health Services, has completed its analysis of hospital data for the purpose of certifying nonprofit hospitals or hospital systems for limited liability under Texas Health and Safety Code, §311.0456. Twenty-six hospitals requested certification. Each of the requesting hospitals will be notified, by mail, on the determination of whether the statutory certification requirements were met. The certification issued under Texas Health and Safety Code §311.0456 to a nonprofit hospital or hospital system takes effect on December 31, 2021, and expires on the anniversary of that date.

CERTIFIED

One non-profit hospital system (6 hospitals) and eleven nonprofit hospitals were determined to be eligible for certification because, based on information that they provided, they satisfied the statutory requirement of providing charity care in an amount equal to or greater than 8 percent of their net patient revenue and that they provided 40 percent or more of the charity care in their counties.

Seton Healthcare System (Travis County only)

Ascension Seton Medical Center in Travis County
Ascension Seton Northwest in Travis County
Ascension Seton Shoal Creek in Travis County
Ascension Seton Southwest in Travis County
Dell Children’s Medical Center in Travis County
Dell Seton Medical Center at the University of Texas in Travis County

Ascension Seton Smithville in Bastrop County
Ascension Seton Highland Lakes in Burnet County
Ascension Seton Edgar B Davis in Caldwell
Christus Good Shepherd Medical Center – Marshall in Harrison County
Ascension Seton Hays in Hays County
CHRISTUS Southeast Texas – Jasper Memorial in Jasper County
CHRISTUS Southeast Texas – St. Elizabeth & St. Mary in Jefferson County
CHRISTUS Spohn Hospital Alice in Jim Wells County
CHRISTUS Spohn Hospital Kleberg in Kleberg County
CHRISTUS Spohn Hospital Shoreline Corpus Christi in Nueces County
United Regional Health Care System in Wichita County

NOT CERTIFIED:

Nine nonprofit hospitals were not certified because, based on their survey data, they did not meet the statutory requirement of providing charity care in an amount equal to or greater than 8 percent of their net patient revenue nor did they provide 40 percent of the charity care in their counties.

Ascension Seton Bastrop in Bastrop County
CHRISTUS Spohn Hospital Beeville in Bee County
CHRISTUS Santa Rosa – Medical Center in Bexar County
Baylor Scott & White Medical Center – Marble Falls in Burnet County
CHRISTUS Mother Frances Hospital – Sulphur Springs in Hopkins County
Baylor Scott & White Medical Center – Hillcrest in McLennan County
Baylor Scott & White Medical Center – Brenham in Washington County
Ascension Seton Williamson in Williamson County
CHRISTUS Mother Frances Hospital – Winnsboro in Wood County

Health and Human Services Commission

Emergency Rules Re:

Renewing 26 TAC §550.213 to require prescribed pediatric extended care centers to develop and enforce policies and procedures for infection control.

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER C. GENERAL PROVISIONS
DIVISION 1. OPERATIONS AND SAFETY PROVISIONS
26 TAC §550.213

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency new §550.213 for a 60-day period. The text of the emergency rule was originally published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6614).

HHSC is renewing an emergency rule to require prescribed pediatric extended care centers to develop and enforce policies and procedures for infection control.

BACKGROUND AND JUSTIFICATION

Renewing 26 TAC §558.960, to define criteria for screening staff, clients, and household members for COVID-19.

CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
SUBCHAPTER D. LICENSURE AND PROGRAM REQUIREMENTS
26 TAC §559.65

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency new §559.65 for a 60-day period. The text of the emergency rule was originally published in the October 8, 2021, issue of the Texas Register (46 TexReg 6617).

HHSC is renewing an emergency rule to define criteria for screening staff, clients, and household members for COVID-19, to require that related documentation be made available to HHSC upon request, and to clarify that HCSSA staff must comply with a long-term care facility’s infection control protocols when entering to provide essential services.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code §2001.034, the Commission 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 critical 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 HCSSA Response to COVID-19.

Proposed Rules Re:

New 1 TAC §355.207, establishing the criteria for providers to receive additional payments to support recruitment and retention efforts under the terms of HHSC’s spending plan for the ARPA enhanced HCBS funding.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER B. ESTABLISHMENT AND ADJUSTMENT OF REIMBURSEMENT RATES FOR MEDICAID
1 TAC §355.207

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §355.207, concerning American Rescue Plan Act (ARPA) Home and Community-Based Services (HCBS) Provider Retention Payments.

BACKGROUND AND JUSTIFICATION

The proposed rule establishes the criteria for providers to receive additional payments to support recruitment and retention efforts under the terms of HHSC’s spending plan for the ARPA enhanced HCBS funding. Section 9817 of the ARPA temporarily increases the Federal Medical Assistance Percentage by 10 percentage points, up to 95 percent, for certain allowable HCBS medical assistance expenditures under the Medicaid program beginning April 1, 2021, and ending March 31, 2022. HHSC submitted an initial spending plan and spending narrative to the Centers for Medicare and Medicaid Services on July 12, 2021, and received partial approval on August 19, 2021. Part of HHSC’s spending plan included recruitment and retention payments, to be used for retention bonuses or other activities, for providers delivering attendant and direct care HCBS.

SECTION-BY-SECTION SUMMARY

Proposed new §355.207(a) provides introductive language regarding the recruitment and retention payments made to HCBS providers in this section.
Proposed new §355.207(b) provides definitions including services considered HCBS services for the purposes of payments made under this section.
Proposed new §355.207(c) provides the eligibility requirements for providers to receive and maintain retention payments made under this section. The subsection requires that providers agree to use 90 percent of payments made under this section for financial compensation for direct care staff delivering HCBS services. It also requires a provider not to use the payments made under this section to increase hourly wages paid to direct care staff on an ongoing basis, and to limit use of the funds to types of compensation that will not result in future reductions to hourly wages when the payments are discontinued. This subsection requires that providers submit two reports regarding use of funds made under this section in a manner prescribed by HHSC.
Proposed new §355.207(d) provides a deadline by which a provider must submit an electronic attestation or be subject to recoupment.
Proposed new §355.207(e) provides a deadline by which a provider must submit required reporting or be subject to recoupment.
Proposed new §355.207(f) provides that failure to submit an attestation of agreement in subsection (d) or required reporting in subsection (e) will result in a recoupment of funds paid under this section.
Proposed new §355.207(g) establishes the process for HHSC to recoup any overpayments made to a provider under this section.
Proposed new §355.207(h) allows HHSC to recoup payments made under the section if the Centers for Medicare and Medicaid Services disallows the use of federal funds.
Proposed §355.207(i) establishes the duration for payments to be made under this section.
Proposed §355.207(j) provides that a financial management services agency ensure that a consumer directed services (CDS) employer uses the funds as defined in subsection (c)(1) – (c)(2).
Proposed §355.207(k) provides that a managed care organization (MCO) must require its contractors to use payments as defined in subsection (c).
Proposed new §355.207(l) provides that an MCO must require its contractors for financial management services to ensure that a CDS employer use payments as defined in subsection (c)(1) – (c)(2).
Proposed new §355.207(m) describes the methodology HHSC will use to calculate payment amounts under this section.

Adopted Rules Re:

Amending 1 TAC §353.1155 to update eligibility standards for the Medically Dependent Children Program.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER M. HOME AND COMMUNITY BASED SERVICES IN MANAGED CARE
1 TAC §353.1155

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §353.1155, concerning Medically Dependent Children Program.

The amendment to §353.1155 is adopted with changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 5999). The rule will be republished.

BACKGROUND AND JUSTIFICATION

The amendment implements Texas Government Code, §531.0601, Long-term Care Services Waiver Program Interest Lists, for individuals enrolled in the Medically Dependent Children Program (MDCP) who, on or after December 1, 2019, become ineligible for MDCP for not meeting the level of care criteria for medical necessity for nursing facility care or the criteria of being under 21 years of age. Section 531.0601 was added to the Texas Government Code by Senate Bill (S.B.) 1207, 86th Legislature, Regular Session, 2019.

The amendment also ensures the eligibility criteria for where an individual may reside is consistent with federal regulations, the MDCP waiver application, and state law on the number of children who can reside in an “agency foster home”.

The amendment aligns the MDCP interest list rules with the interest list rules in the Community Living Assistance and Support Services (CLASS), Deaf Blind with Multiple Disabilities (DBMD), Home and Community-based Services (HCS), and Texas Home Living (TxHmL) waiver programs.

New 1 TAC §§353.1451 – 353.1454, to describe the due process procedures an MCO must follow when engaging in recoupment efforts related to fraud or abuse.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER Q. PROCESS TO RECOUP CERTAIN OVERPAYMENTS
1 TAC §§353.1451 – 353.1454

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §353.1451, concerning Purpose and Authority; §353.1452, concerning Definitions; §353.1453, concerning Due Process Procedures to Recoup an Overpayment Related to an EVV Visit Transaction that is not Fraud or Abuse and Limitation on Audit Period; and §353.1454, concerning Due Process Procedures to Recoup an Overpayment Because of a Discovery of Fraud or Abuse, in Chapter 353, new Subchapter Q, Process to Recoup Certain Overpayments.

New §§353.1451 – 353.1454 are adopted without changes to the proposed text as published in the September 24, 2021, issue of the Texas Register (46 Tex Reg 6321). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

Senate Bill 1991, 86th Legislature, Regular Session, 2019, amended Texas Government Code by adding new §531.1131(f) and §531.1135 requiring HHSC to adopt rules describing the due process procedures a managed care organization (MCO) must follow to recoup an overpayment made to a health care provider related to missing electronic visit verification (EVV) information; and requiring that, as part of the process to recoup such an overpayment, an MCO give a provider at least 60 days to correct a deficiency in a claim before the MCO begins any efforts to recoup overpayments.

Texas Government Code, §531.1131(e) requires HHSC to adopt rules describing the due process procedures an MCO must follow when engaging in recoupment efforts related to fraud or abuse.

The adopted rules implement Texas Government Code, §531.1131(e) and (f) and §531.1135.

In Addition Re:

Issuing a correction of error for proposed new 1 TAC §355.8706 to correct the section number in the text of the rule and fix a misspelling.

OVERVIEW

The Texas Health and Human Services Commission proposed new 1 TAC §355.8706 in the January 14, 2022, issue of the Texas Register (47 Tex Reg 74). The section number for this rule was published correctly in the preamble to the rulemaking, but it was listed incorrectly in the text of the rule itself. The correct rule number for the proposed new rule is 1 TAC §355.8706. Also in 1 TAC §355.8706, a word was misspelled. The word “Commision” should be spelled “Commission.”

Notice of Public Hearing on Proposed Medicaid Payment Rates for the Calendar Fee Review of Medical Transportation Program (MTP) Hearing.

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on February 14, 2022, at 1:00 p.m., to receive public comments on proposed Medicaid payment rates for the Medical Policy Review of Medical Transportation Program.

Due to the declared state of disaster stemming from COVID-19, this hearing will be conducted online only. 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/5627454862296110860

BACKGROUND AND JUSTIFICATION

The payment rates for the Medical Transportation Program are proposed to be effective January 1, 2022.

The proposed payment rates were calculated in accordance with Title 1 of the Texas Administrative Code: §355.8561, which addresses the reimbursement methodology for the Medical Transportation Program.

DETAILS

A briefing packet describing the proposed payment rates will be made available at https://pfd.hhs.texas.gov/rate-packets on or after February 4, 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 Public Hearing on Proposed Medicaid Payment Rates for the Long Acting Reversible Contraceptives (LARCs) Fee Review Hearing.

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on February 14, 2022, at 1:00 p.m., to receive public comments on proposed Medicaid payment rates for the Long Acting Reversible Contraceptives (LARCs) Fee Review updates.

https://attendee.gotowebinar.com/register/5627454862296110860

BACKGROUND AND JUSTIFICATION

The proposed payment rates for the LARCS Fee Review will be effective April 1, 2022.

The proposed payment rates were calculated in accordance with Title 1 of the Texas Administrative Code:

§355.8085, Reimbursement Methodology for Physicians and Other Practitioners;
§355.8441, Reimbursement Methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services, also known as Texas Health Steps (THSteps) and the THSteps Comprehensive Care Program (CCP);
§355.8581, Reimbursement Methodology for Family Planning Services; and
§355.8641, Reimbursement Methodology for the Women’s Health Program.

DETAILS

Notice of Public Hearing on Proposed Medicaid Payment Rates for the Medical Policy Review of Prosigna Hearing.

OVERVIEW

https://attendee.gotowebinar.com/register/5627454862296110860

BACKGROUND AND JUSTIFICATION

The payment rates for the Medicaid Medical Policy Review of Prosigna proposed to be effective April 1, 2022.

The proposed payment rates were calculated in accordance with Title 1 of the Texas Administrative Code:

§355.8610, which addresses the reimbursement for clinical laboratory services.
§355.8441, which addresses reimbursement methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) services (known in Texas as Texas Health Steps) and the THSteps Comprehensive Care Program (CCP)
§355.8085, which addresses the reimbursement methodology for physicians and other practitioners

DETAILS

Notice of Public Hearing on Proposed Medicaid Payment Rates for the Special Fee Review of HCPCS Code: J0172 – Aduhelm Hearing.

OVERVIEW

https://attendee.gotowebinar.com/register/5627454862296110860

BACKGROUND AND JUSTIFICATION

The proposed payment rates for the special fee review of HCPCS Code: J0172 – Aduhelm will be effective January 1, 2022.

The proposed payment rates were calculated in accordance with Title 1 of the Texas Administrative Code:

§355.8085, which addresses the reimbursement methodology for physicians and other practitioners; and
§355.8441, which addresses the reimbursement methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) services (known in Texas as Texas Health Steps)

DETAILS

Written comments regarding the proposed payment rates may be submitted in lieu of, or in addition to, oral testimony until 5:00 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.

Texas Department of Licensing and Regulation

Proposed Rules Re:

Amending 16 TAC §111.14 to update rules related to the Speech-Language Pathologists and Audiologists Program by removing the requirement that advisory board meetings be announced and conducted under the provisions of the Open Meetings Act.

CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
SUBCHAPTER B. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS ADVISORY BOARD
16 TAC §111.14

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 111, Subchapter B, §111.14, regarding the Speech-Language Pathologists and Audiologists program. The proposed changes are referred to as the “proposed rule.”

The proposed rule amends §111.14, Meetings. The proposed rule repeals subsection (b), which requires advisory board meetings to be announced and conducted under the provisions of the Open Meetings Act. The proposed rule re-letters the subsequent subsections.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 111 implement Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Department, added new advisory board provisions to Occupations Code, Chapter 51, the Department’s enabling statute. (HB 1560, Article 1, Section 1.04.) The proposed rule is necessary to align the program rules with Chapter 51, as amended by HB 1560.

HB 1560 added new §51.209(a-2) to Chapter 51, which authorizes the Department’s advisory boards to meet by telephone conference call, videoconference, or other similar telecommunication method, provided the meeting complies with certain requirements. These authorized types of meetings are not required to comply with some videoconference call requirements in the Open Meetings Act, Government Code, Chapter 551.

Ten of the Department’s programs currently contain language in their rule chapters that requires advisory board meetings to specifically comply with the Open Meetings Act. The Department is proposing rule changes for the affected programs to remove this requirement, so that there is no conflict with the Department’s enabling statute, Chapter 51.

The current proposed rule makes the necessary rule changes for the Speech-Language Pathologists and Audiologists program and aligns the program rules with new §51.209(a-2), as added by HB 1560.

Amending 16 TAC §112.14 to update standards related to the Hearing Instrument Fitters and Dispensers program by removing the requirement that advisory board meetings be announced and conducted under the provisions of the Open Meetings Act.

CHAPTER 112. HEARING INSTRUMENT FITTERS AND DISPENSERS
SUBCHAPTER B. HEARING INSTRUMENT FITTERS AND DISPENSERS ADVISORY BOARD
16 TAC §112.14

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 112, Subchapter B, §112.14, regarding the Hearing Instrument Fitters and Dispensers program. The proposed changes are referred to as the “proposed rule.”

The proposed rule amends §112.14, Meetings. The proposed rule repeals subsection (b), which requires advisory board meetings to be announced and conducted under the provisions of the Open Meetings Act. The proposed rule re-letters the subsequent subsections.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 112 implement Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers.

The current proposed rule makes the necessary rule changes for the Hearing Instrument Fitters and Dispensers program and aligns the program rules with new §51.209(a-2), as added by HB 1560.

Amending 16 TAC §114.69 to update requirements related to the Orthotists and Prosthetists program by removing the requirement that advisory board meetings be announced and conducted under the provisions of the Open Meetings Act.

CHAPTER 114. ORTHOTISTS AND PROSTHETISTS
16 TAC §114.69

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 114, §114.69, regarding the Orthotists and Prosthetists program. The proposed changes are referred to as the “proposed rule.”

The proposed rule amends §114.69, Advisory Board; Meetings. The proposed rule repeals subsection (a), which requires advisory board meetings to be announced and conducted under the provisions of the Open Meetings Act. The proposed rule re-letters the subsequent subsections.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 114 implement Texas Occupations Code, Chapter 605, Orthotists and Prosthetists.

The current proposed rule makes the necessary rule changes for the Orthotists and Prosthetists program and aligns the program rules with new §51.209(a-2), as added by HB 1560.

Amending 16 TAC §115.7 to update rules regarding the Midwives program by removing the requirement that advisory board meetings be announced and conducted under the provisions of the Open Meetings Act.

CHAPTER 115. MIDWIVES
16 TAC §115.7

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 115, §115.7, regarding the Midwives program. The proposed changes are referred to as the “proposed rule.”

The proposed rule amends §115.7, Meetings. The proposed rule repeals subsection (b), which requires advisory board meetings to be announced and conducted under the provisions of the Open Meetings Act. The proposed rule re-letters the subsequent subsections.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 115 implement Texas Occupations Code, Chapter 203, Midwives.

The current proposed rule makes the necessary rule changes for the Midwives program and aligns the program rules with new §51.209(a-2), as added by HB 1560.

Amending 16 TAC §116.14 to update rules related to the Dietitians program by removing the requirement that advisory board meetings be announced and conducted under the provisions of the Open Meetings Act.

CHAPTER 116. DIETITIANS
SUBCHAPTER B. DIETITIANS ADVISORY BOARD
16 TAC §116.14

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 116, Subchapter B, §116.14, regarding the Dietitians program. The proposed changes are referred to as the “proposed rule.”

The proposed rule amends §116.14, Meetings. The proposed rule repeals subsection (b), which requires advisory board meetings to be announced and conducted under the provisions of the Open Meetings Act. The proposed rule re-letters the subsequent subsections.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 116 implement Texas Occupations Code, Chapter 701, Dietitians.

The current proposed rule makes the necessary rule changes for the Dietitians program and aligns the program rules with new §51.209(a-2), as added by HB 1560.

Amending 16 TAC §120.69 to update rules related to the Dyslexia Therapy Program by removing the requirement that advisory board meetings be announced and conducted under the provisions of the Open Meetings Act.

CHAPTER 120. LICENSED DYSLEXIA THERAPISTS AND LICENSED DYSLEXIA PRACTITIONERS
16 TAC §120.69

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 120, §120.69, regarding the Dyslexia Therapy program. The proposed changes are referred to as the “proposed rule.”

The proposed rule amends §120.69, Meetings. The proposed rule repeals subsection (b), which requires advisory board meetings to be announced and conducted under the provisions of the Open Meetings Act. The proposed rule re-letters the subsequent subsections.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 120 implement Texas Occupations Code, Chapter 403, Licensed Dyslexia Practitioners and Licensed Dyslexia Therapists.

The current proposed rule makes the necessary rule changes for the Dyslexia Therapy program and aligns the program rules with new §51.209(a-2), as added by HB 1560.

Amending 16 TAC §121.69 to remove certain requirements related to Behavior Analyst Advisory Board meetings.

CHAPTER 121. BEHAVIOR ANALYST
16 TAC §121.69

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 121, §121.69, regarding the Behavior Analysts program. The proposed changes are referred to as the “proposed rule.”

The proposed rule amends §121.69, Advisory Board: Meetings. The proposed rule repeals subsection (a), which allows someone other than the presiding officer of the Commission or the executive director to call an advisory board meeting and which specifies the minimum number of meetings per year. The proposed rule also repeals subsection (b), which requires advisory board meetings to be announced and conducted under the provisions of the Open Meetings Act. The proposed rule re-letters the subsequent subsections.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 121 implement Texas Occupations Code, Chapter 506, Behavior Analysts.

HB 1560 added new §51.209(a-1) to Chapter 51, which requires an advisory board to meet at the call of the executive director or the presiding officer of the Commission. HB 1560 also repealed provisions from certain program statutes that conflicted with this new provision. (HB 1560, Article 1, Sections 1.19 and 1.25).

Ten of the Department’s programs currently contain language in their rule chapters that authorizes or requires the advisory boards to meet at the call of persons other than the executive director or the presiding officer of the Commission, and/or to meet a certain number of times per year. The Department is proposing rule changes for the affected programs to remove these provisions, so that there is no conflict with the Department’s enabling statute, Chapter 51, or with the program statutes, as amended by HB 1560.

In addition, HB 1560 added new §51.209(a-2) to Chapter 51, which authorizes the Department’s advisory boards to meet by telephone conference call, videoconference, or other similar telecommunication method, provided the meeting complies with certain requirements. These authorized types of meetings are not required to comply with some videoconference call requirements in the Open Meetings Act, Government Code, Chapter 551.

The Behavior Analysts program rules are affected by both categories of changes. The current proposed rule makes the necessary rule changes for the Behavior Analysts program to align the program rules with new Occupations Code §51.209(a-1) and (a-2) and to reflect the repeal of Occupations Code §506.105.

Texas Board of Physical Therapy Examiners

Adopted Rules Re:

Amending 22 TAC §329.3 to adjust the duration of a temporary license to the issuance of the permanent license.

CHAPTER 329. LICENSING PROCEDURE
22 TAC §329.3

OVERVIEW

The Texas Board of Physical Therapy Examiners adopts an amendment to 22 Texas Administrative Code (TAC) §329.3, concerning Temporary Licensure, subsection (a)(3), relating to the duration of a valid temporary license. The amendment is adopted without changes to the proposed text as published in the November 26, 2021, issue of the Texas Register (46 Tex Reg 7944) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment is adopted in order to realign the duration of a temporary license to the issuance of the permanent license instead of until the score report is received from the board as applicants receive their National Physical Therapy Examination (NPTE) score report directly from the Federation of State Boards of Physical Therapy (FSBPT) and not from the board.

No public comment was received.

The amended rules are adopted under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Department of Aging and Disability Services

Adopted Rules Re:

Amending 40 TAC §9.157, §9.158 to update requirements concerning the Home and Community-Based Services (HCS) program and Community First Choice (CFC).

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 §9.157, §9.158

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC adopts amendments to §9.157, concerning HCS Interest List; §9.158, concerning Process for Enrollment of Applicants; §9.566, concerning TxHmL Interest List; and §9.567, concerning Process for Enrollment.

The amendments to §9.157 and §9.566 are adopted with changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6207). These rules will be republished.

The amendments to §9.158 and §9.567 are adopted without changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6207). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments implement Texas Government Code, §531.0601, Long-term Care Services Waiver Program Interest Lists. Section 531.0601 was added to the Texas Government Code by Senate Bill (S.B.) 1207, 86th Legislature, Regular Session, 2019. Section 531.0601 provides, in part, that the name of an individual who is enrolled in but becomes ineligible for the Medically Dependent Children Program (MDCP) may, under some circumstances, be added to the interest list of the Home and Community-based Services (HCS) Program or the interest list of the Texas Home Living (TxHmL) Program using a date other than the date of the request as the interest list date. The amendments to §9.157(f) and §9.566(e) describe the circumstances that apply to an individual who is determined ineligible for MDCP, for not meeting the level of care criteria for medical necessity for nursing facility care or the criteria of being under 21 years of age, after November 30, 2019.

The amendments to §9.157 and §9.566 more clearly describe how the name of an individual determined diagnostically or functionally ineligible while enrolling in another waiver program may be added to the HCS interest list or TxHmL interest list. These sections also clarify how an individual’s name that was removed from the HCS interest list or TxHmL interest list is added to the list.

Amending 40 TAC §9.566, §9.567 to to provide updated requirements related to the Texas Home Living (TXHML) Program and Community First Choice (CFC).

CHAPTER 9. INTELLECTUAL DISABILITY SERVICES–MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
SUBCHAPTER N. TEXAS HOME LIVING (TXHML) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)
40 TAC §9.566, §9.567

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 40 TAC §42.202 to clarify the procedures for adding an individual’s name to the Deaf Blind with Multiple Disabilities (DBMD) interest list after the individual makes a request to be added to the interest list.

CHAPTER 42. DEAF BLIND WITH MULTIPLE DISABILITIES (DBMD) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW
DIVISION 1. ELIGIBILITY
40 TAC §42.202

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC adopts amendments to §42.202, concerning DBMD Interest List; §42.211, concerning Written Offer of Enrollment in the DBMD Program; and §42.402, concerning Qualifications of Program Provider Staff.

The amendment to §42.202 is adopted with changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6218). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The amendments implement Texas Government Code, §531.0601, Long-term Care Services Waiver Program Interest Lists. Section 531.0601 was added to the Texas Government Code by Senate Bill (S.B.) 1207, 86th Legislature, Regular Session, 2019. Section 531.0601 provides, in part, that the name of an individual who is enrolled in but becomes ineligible for the Medically Dependent Children Program (MDCP) may, under some circumstances, be added to the interest list of the Deaf Blind with Multiple Disabilities (DBMD) Program using a date other than the date of the request as the interest list date. The amendment to §42.202(e), which describes those circumstances, applies to an individual who is determined ineligible for MDCP, for not meeting the level of care criteria for medical necessity for nursing facility care or the criteria of being under 21 years of age, after November 30, 2019.

The amendment to §42.202 also more clearly describes how HHSC adds an individual’s name to the DBMD interest list after the individual makes a request to be added to the interest list, including when the individual is determined diagnostically or functionally eligible during the enrollment process for another waiver program.

Amending 40 TAC §42.211 to edit requirements related to the enrollment process for DBMD and CFC.

CHAPTER 42. DEAF BLIND WITH MULTIPLE DISABILITIES (DBMD) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW
DIVISION 2. ENROLLMENT PROCESS
40 TAC §42.211

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC adopts amendments to §42.202, concerning DBMD Interest List; §42.211, concerning Written Offer of Enrollment in the DBMD Program; and §42.402, concerning Qualifications of Program Provider Staff.

The amendments to §42.211 and §42.402 are adopted without changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6218). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments implement Texas Government Code, §531.0601, Long-term Care Services Waiver Program Interest Lists. Section 531.0601 was added to the Texas Government Code by Senate Bill (S.B.) 1207, 86th Legislature, Regular Session, 2019. Section 531.0601 provides, in part, that the name of an individual who is enrolled in but becomes ineligible for the Medically Dependent Children Program (MDCP) may, under some circumstances, be added to the interest list of the Deaf Blind with Multiple Disabilities (DBMD) Program using a date other than the date of the request as the interest list date. The amendment to §42.202(e), which describes those circumstances, applies to an individual who is determined ineligible for MDCP, for not meeting the level of care criteria for medical necessity for nursing facility care or the criteria of being under 21 years of age, after November 30, 2019.

The amendment to §42.211 deletes subsection (e)(2) because if an individual or LAR declines an offer of enrollment in the DBMD Program, it is not necessary for HHSC to withdraw the offer.

Amending 40 TAC §42.402 to clarify training and licensing requirements for DBMD and CFC programs.

CHAPTER 42. DEAF BLIND WITH MULTIPLE DISABILITIES (DBMD) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER D. ADDITIONAL PROGRAM PROVIDER PROVISIONS
40 TAC §42.402

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC adopts amendments to §42.202, concerning DBMD Interest List; §42.211, concerning Written Offer of Enrollment in the DBMD Program; and §42.402, concerning Qualifications of Program Provider Staff.

BACKGROUND AND JUSTIFICATION

The amendments implement Texas Government Code, §531.0601, Long-term Care Services Waiver Program Interest Lists. Section 531.0601 was added to the Texas Government Code by Senate Bill (S.B.) 1207, 86th Legislature, Regular Session, 2019. Section 531.0601 provides, in part, that the name of an individual who is enrolled in but becomes ineligible for the Medically Dependent Children Program (MDCP) may, under some circumstances, be added to the interest list of the Deaf Blind with Multiple Disabilities (DBMD) Program using a date other than the date of the request as the interest list date. The amendment to §42.202(e), which describes those circumstances, applies to an individual who is determined ineligible for MDCP, for not meeting the level of care criteria for medical necessity for nursing facility care or the criteria of being under 21 years of age, after November 30, 2019.

The amendment to §42.402 clarifies the requirement for an intervener to complete a practicum in deafblind-related course work that is at least one semester credit hour at a college or university; adds a requirement for a service provider of dental treatment to be licensed to practice dentistry or dental hygiene; and prohibits a relative or guardian from being the provider of an adaptive aid.

Amending 40 TAC §45.202 to more clearly describe the procedure for adding an individual’s name to the CLASS interest list.

CHAPTER 45. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW
DIVISION 1. ELIGIBILITY AND MAINTENANCE OF INTEREST LIST
40 TAC §45.202

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC adopts amendments to §45.202, concerning CLASS Interest List; and §45.211, concerning Enrollment Process.

The amendment to §45.202 is adopted with changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6224). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The amendments implement Texas Government Code, §531.0601, Long-term Care Services Waiver Program Interest Lists. Section 531.0601 was added to the Texas Government Code by Senate Bill (S.B.) 1207, 86th Legislature, Regular Session, 2019. Section 531.0601 provides, in part, that the name of an individual who is enrolled in but becomes ineligible for the Medically Dependent Children Program (MDCP) may, under some circumstances, be added to the interest list of the Community Living Assistance and Support Services (CLASS) Program using a date other than the date of the request as the interest list date. The amendment to §45.202(f), which describes those circumstances, applies to an individual who is determined ineligible for MDCP, for not meeting the level of care criteria for medical necessity for nursing facility care or the criteria of being under 21 years of age, after November 30, 2019.

The amendment to §45.202 also more clearly describes how HHSC adds an individual’s name to the CLASS interest list after the individual makes a request to be added to the interest list, including when the individual is determined diagnostically or functionally ineligible for another waiver program during the enrollment process, or the individual is under 22 years of age and resides in a nursing facility.

Amending 45 TAC §45.211 to correct minor editorial errors related to the enrollment process for community living assistance and support services and community first choice services.

CHAPTER 45. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW
DIVISION 2. ENROLLMENT PROCESS
45 TAC §45.211

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC adopts amendments to §45.202, concerning CLASS Interest List; and §45.211, concerning Enrollment Process.

The amendment to §45.211 is adopted without changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6224). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments implement Texas Government Code, §531.0601, Long-term Care Services Waiver Program Interest Lists. Section 531.0601 was added to the Texas Government Code by Senate Bill (S.B.) 1207, 86th Legislature, Regular Session, 2019. Section 531.0601 provides, in part, that the name of an individual who is enrolled in but becomes ineligible for the Medically Dependent Children Program (MDCP) may, under some circumstances, be added to the interest list of the Community Living Assistance and Support Services (CLASS) Program using a date other than the date of the request as the interest list date. The amendment to §45.202(f), which describes those circumstances, applies to an individual who is determined ineligible for MDCP, for not meeting the level of care criteria for medical necessity for nursing facility care or the criteria of being under 21 years of age, after November 30, 2019.

The amendment to §45.211 corrects a reference to §45.202 based on the amendment to that section and makes minor editorial changes.