Texas Register March 4, 2022 Volume: 47 Number: 9

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §551.47, requiring limited indoor and outdoor visitation in an intermediate care facility.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER C. STANDARDS FOR LICENSURE
26 TAC §551.47

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Part 1, Texas Administrative Code, Chapter 551, Intermediate Care Facilities for Individuals with an Intellectual Disability (ICF/IID) or Related Conditions, new §551.47, concerning an emergency rule in response to COVID-19 describing requirements for limited indoor and outdoor visitation in ICF/IID.

HHSC is adopting a new emergency rule to require limited indoor and outdoor visitation in an intermediate care 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, 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. This emergency rulemaking reflects the continued reopening of the State of Texas. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Intermediate Care Facility COVID-19 Response–Expansion of Reopening Visitation.

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New 26 TAC §553.2003, establishing requirements related to 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 Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Texas Administrative Code, Chapter 553, Licensing Standards for Assisted Living Facilities, Subchapter K, COVID-19 Emergency Rule, new §553.2003, concerning an emergency rule in response to COVID-19 describing requirements for visitation in a facility.

HHSC is adopting an emergency rule to govern 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, HHSC 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.

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New 26 TAC §558.950, requiring limited indoor and outdoor visitation in a hospice inpatient unit.

CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
SUBCHAPTER I. RESPONSE TO COVID-19 AND PANDEMIC-LEVEL COMMUNICABLE DISEASE
26 TAC §558.950

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 558, Licensing Standards for Home and Community Support Services Agencies, Subchapter I, Response to COVID-19 and Pandemic-Level Communicable Disease, new §558.950, concerning an emergency rule in response to COVID-19 describing requirements for indoor and outdoor visitation in a hospice inpatient unit.

HHSC is adopting an emergency rule to require limited indoor and outdoor visitation in a hospice inpatient unit. 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 Home and Community Support Services Agencies.

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In Addition Re:

Public Notice: Statewide Transition Plan for Medicaid Home and Community Based Services Settings

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit a Statewide Transition Plan (STP) to the Centers for Medicare & Medicaid Services (CMS) for approval, as required in Title 42 Code of Federal Regulations, Sections 441.301(c)(6) and 441.710(a)(3). The STP describes HHSC’s planned activities to achieve full and ongoing compliance with the federal Home and Community Based Services (HCBS) settings regulations. The STP is expected to be submitted to CMS in April 2022.

BACKGROUND AND JUSTIFICATION

In March 2014, CMS issued federal regulations that added requirements for settings where Medicaid HCBS are provided. The regulations require that a Medicaid HCBS setting be selected by the person receiving Medicaid HCBS. Medicaid HCBS settings must also be integrated in and support the person’s full access to the community. CMS has given states until March 17, 2023, to bring Medicaid HCBS settings into compliance with the regulations.

CMS requires states to submit an STP describing their planned initiatives and activities to achieve compliance with the federal HCBS settings regulations. The STP must include:

• An assessment of settings where Medicaid HCBS are provided;
• Remediation strategies for settings that do not meet the requirements of the regulations;
• A summary of public and stakeholder input on the assessment processes and remediation strategies; and
• A summary of public comments received on the transition plan and any revisions made to the plan in response to public comment.

HHSC has amended the version of the STP previously submitted to CMS based on public comments and guidance from CMS. The amended STP can be found at: https://www.hhs.texas.gov/services/health/medicaid-chip/medicaid-chip-programs-services/home-community-based-services.

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Public Notice – Texas State Plan for Medical Assistance Amendment (updated Public Notice of Intent)

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendment is effective April 1, 2022.

The original Public Notice of Intent (PNI) was published in the December 10, 2021, issue of the Texas Register.

BACKGROUND AND JUSTIFICATION

The proposed amendment to the Texas State Plan will correspond with a proposed amendment to 1 Texas Administrative Code §355.8101. The purpose of the proposed amendment to §355.8101 is to comply with House Bill 4 (H.B. 4), 87th Legislature, Regular Session 2021 and to make other amendments to enhance clarity, consistency, and specificity. HHSC is required by H.B. 4 to ensure a rural health clinic (RHC) is reimbursed for a covered telemedicine or telehealth medical service delivered by a health care provider to a Medicaid recipient at a RHC facility.

A rule hearing was conducted in person and online on January 24, 2022, at 2:00 p.m. Information about the proposed rule changes was published in the January 14, 2022, issue of the Texas Register.

Interested parties may obtain additional information and/or a free copy of the proposed amendment by contacting Holly Freed, State Plan Policy Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; by telephone at (512) 487-3349; by facsimile at (512) 730-7472; or by e-mail at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposed amendment will be available for review at the local county offices of HHSC, formerly the local offices of the Texas Department of Aging and Disability Services.

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Department of Aging and Disability Services

Emergency Rules Re:

New 40 TAC §9.198 and §9.199, describing requirements related to infection control, visitation, and essential caregivers in the Home and Community-Based Services (HCS) Program.

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 Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40, Part 1, Texas Administrative Code, Chapter 9, Intellectual Disability Services–Medicaid State Operating Agency Responsibilities, new §9.198 and §9.199, concerning emergency rules in response to COVID-19 in order to reduce the risk of transmission of COVID-19.

HHSC is adopting 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 follow for infection control, visitation, and essential caregivers.

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 essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of these Emergency Rules for Program Provider Response to COVID-19 and Home and Community-based Services (HCS) Provider Response to COVID-19 Expansion of Reopening Visitation.

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Cancer Prevention and Research Institute of Texas

Proposed Rules Re:

Amending 25 TAC §703.17 to require the Cancer Prevention and Research Institute of Texas to specify in the award contracts any changes from standard reporting requirements and associated consequences for failing to timely report.

CHAPTER 703. GRANTS FOR CANCER PREVENTION AND RESEARCH
25 TAC §703.17

OVERVIEW

The Cancer Prevention and Research Institute of Texas (“CPRIT” or “the Institute”) proposes amending 25 TAC §703.17, relating to revenue sharing terms and the Institute’s option to take equity ownership in a grant recipient.

BACKGROUND AND JUSTIFICATION

Texas Health and Safety Code §102.256 requires CPRIT to include terms in every grant contract that allow the state to benefit financially from the results of CPRIT-funded grant projects. One option authorized by the statute is through the state taking equity in the grantee. Issues related to equity ownership may affect certain standard grantee reporting requirements, such as the schedule for the grantee to certify and verify its matching funds obligation. The proposed change requires CPRIT to specify in the award contract any changes from standard reporting requirements and associated consequences for failing to timely report.

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Adopted Rules Re:

Amending 25 TAC §703.26 to update rules related to the reimbursement of clinical trial participation costs to grantees.

CHAPTER 703. GRANTS FOR CANCER PREVENTION AND RESEARCH
25 TAC §703.26

OVERVIEW

The Cancer Prevention and Research Institute of Texas (“CPRIT” or “the Institute”) adopts the amendments to 25 Texas Administrative Code §703.26 without changes to the proposed amendments as published in the December 3, 2021, issue of the Texas Register (46 Tex Reg 8173); therefore, the rule will not be republished. The amendments relate to reimbursement of clinical trial participation costs to grantees, a statutory reference to the Cancer Clinical Trial Participation Program, and non-substantive edits.

BACKGROUND AND JUSTIFICATION

The amendments to §703.26(f) add parking as a reimbursable clinical trial participation cost, correct the statutory reference of the Cancer Clinical Trial Participation Program to Texas Health and Safety Code Chapter 51, and correct a grammatical error. The amendment to §703.26(e) restructures the subsection without changing the substantive requirements.

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Texas Department of Insurance

Proposed Rules Re:

New 28 TAC §§21.5501 – 21.5503, requiring health benefit plan issuers or administrators to publish rate information for: covered health care services and supplies; unique billed charges and allowed amounts for covered services provided by out-of-network providers; and negotiated rates for prescription drugs.

CHAPTER 21. TRADE PRACTICES
SUBCHAPTER UU. MACHINE-READABLE FILES
28 TAC §§21.5501 – 21.5503

OVERVIEW

The Texas Department of Insurance proposes new 28 TAC §§21.5501 – 21.5503, concerning machine-readable files. These sections implement House Bill 2090, 87th Legislature, 2021, which amended the Texas Insurance Code by adding Chapter 1662, concerning Health Care Cost Transparency.

BACKGROUND AND JUSTIFICATION

New Insurance Code Chapter 1662 requires health benefit plan issuers or administrators to publish to the internet certain information in three machine-readable files. Specifically, Insurance Code §1662.103 requires issuers or administrators to publish: rate information for covered health care services and supplies; unique billed charges and allowed amounts for covered services provided by out-of-network providers; and negotiated rates for prescription drugs. Insurance Code §1662.107 requires the department to prescribe by rule the form and manner in which the machine-readable files must be made available.

SECTION-BY-SECTION SUMMARY

• Section 21.5501. New §21.5501 identifies the types of health benefit plans that are, and are not, subject to the requirements to produce machine-readable files. The section also specifies when issuers must begin publishing machine-readable files, including providing additional time for smaller issuers. Additionally, the new section provides that issuers are not required to publish machine-readable files under this proposal’s requirements until the federal Departments of Labor, Health and Human Services, and Treasury begin enforcing the corresponding federal Transparency in Coverage rules (26 C.F.R. §§54.9815-2715A1 through A3; 29 C.F.R. §§2590.715-2715A1 through A3; and 45 C.F.R. §§147.210-.212), or January 1, 2024, whichever is earlier. As of the date of this publication, federal guidance states that the federal Departments will defer enforcement of the requirement that plans and issuers publish machine-readable files relating to prescription drug pricing pending further federal rulemaking, while enforcement of the requirements related to in-network rates and out-of-network allowed amounts and billed charges will be deferred until July 1, 2022. See FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 49 (available at dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-49.pdf).
• Section 21.5502. New §21.5502 addresses various details concerning the form and manner in which machine-readable files are to be published, including transport mechanisms, nonproprietary data, and file-naming conventions. The new section also provides a safe harbor for issuers that are compliant with federal machine-readable file requirements.
• Section 21.5503. New §21.5503 describes the data schemas that specify the data fields that must be included in each machine-readable file and the technical parameters associated with each data field. The department has published the data schemas on its website.

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Texas Board of Occupational Therapy Examiners

Proposed Rules Re:

Amending 40 TAC §362.1 to update definitions related to occupational therapy.

CHAPTER 362. DEFINITIONS
40 TAC §362.1

OVERVIEW

The Texas Board of Occupational Therapy Examiners proposes amendments to 40 Texas Administrative Code §362.1. Definitions. The amendments are proposed to clarify and cleanup the section and to replace the current definition of occupational therapy practice.

DETAILS

The amendments revise current definitions to increase clarity and uniformity, update and/or remove outdated and/or unnecessary definitions, and remove possible redundancy. For example, the definitions of occupational therapist registered and certified occupational therapy assistant will be removed as part of the amendments and related information will be collocated under the definitions of occupational therapist and occupational therapy assistant.

Changes will also revise the definition of non-licensed personnel, including to remove a reference to on-the-job training from the definition, particularly as the definition of an occupational therapy aide in Texas Occupations Code §454.002, Definitions, already includes such a reference.

The amendments include the replacement of the current definition of occupational therapy practice with an updated and expanded definition adapted from related information from the American Occupational Therapy Association (AOTA). The change will align the definition more closely with current language available on a national level.

The amendments also include the removal of information regarding phone numbers from the definition of a complete renewal. A related proposed amendment to Texas Administrative Code §369.2, Changes of Name or Address, which would add a requirement regarding notifying the Board of phone number changes, has also been submitted for publication to the Texas Register.

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Amending 40 TAC §369.2 and §369.3 to require licensees to update the Board of phone number changes and clarify other requirements related to display of licenses.

CHAPTER 369. DISPLAY OF LICENSES
40 TAC §369.2, §369.3

OVERVIEW

The Texas Board of Occupational Therapy Examiners proposes amendments to 40 Texas Administrative Code §369.2, Changes of Name or Address, and §369.3, Use of Titles. The proposed amendments to §369.2 add a requirement to notify the Board of phone number changes and revise the rule title. The proposed amendments to §369.3 cleanup and clarify the section and add information regarding the use of the title doctor.

DETAILS

Amendments to §369.2, Changes of Name or Address, would require licensees to update the Board of phone number changes, and a related amendment would change the title of the section from “Changes of Name or Address” to a more comprehensive title, “Change of Name or Contact Information.” Concomitant with such changes, a proposed amendment to 40 Texas Administrative Code §362.1, Definitions, has also been submitted to the Texas Register for publication and would remove information regarding phone numbers from the definition of a complete renewal.

Changes to §369.3 would clarify and cleanup current provisions regarding the use of titles to increase clarity and consistency in the section.

An additional change to the section is a reference to Occupational Therapy Practice Act §454.007, Use of Title of Doctor. The amendment provides that the use of the title doctor is governed by §454.007.

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Amending 40 TAC §371.2 to expand the possible opportunities licensees on retired status have to offer voluntary charity care.

CHAPTER 371. INACTIVE AND RETIRED STATUS
40 TAC §371.2

OVERVIEW

The Texas Board of Occupational Therapy Examiners proposes amendments to 40 Texas Administrative Code §371.2, Retired Status. The changes are proposed to revise requirements concerning voluntary charity care.

DETAILS

The changes would remove the requirement that the voluntary charity care that licensees on retired status may offer may only be provided for a charitable organization as defined in §84.003 of the Texas Civil Practice and Remedies Code. The changes will expand the possible opportunities licensees on retired status have to offer voluntary charity care.

The changes also include a cleanup to the section to change “OT Practice Act” to “Occupational Therapy Practice Act” to achieve greater uniformity in the board rules.

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Amending 40 TAC §372.1 to clarify and revise requirements regarding the provision of occupational therapy services, including services delivered via telehealth.

CHAPTER 372. PROVISION OF SERVICES
40 TAC §372.1

OVERVIEW

The Texas Board of Occupational Therapy Examiners proposes amendments to 40 Texas Administrative Code §372.1, Provision of Services. The changes are proposed to cleanup and clarify the section and revise requirements regarding the provision of occupational therapy services, including services delivered via telehealth.

DETAILS

Changes to the section include those that would clarify requirements concerning the provision of occupational therapy services. For example, a provision would be added that would clarify that the occupational therapist is responsible for determining whether an evaluation is needed and if a referral is required for an occupational therapy evaluation.

The changes are also proposed to clarify provisions regarding telehealth and the required client contact with an occupational therapy practitioner. For example, the amendments would clarify that when such contact may be in person or via telehealth, a combination of in-person contact and telehealth may be used.

The changes would also revise requirements concerning the contact required for an intervention session and would allow for such contact to also be satisfied by synchronous audio contact, provided that the occupational therapy practitioner makes use of store-and-forward technology in preparation for or during the intervention session. The changes include adding a definition of store-and-forward technology.

In addition, the amendments include the removal of a provision that requires the on-site presence of the occupational therapy practitioner for the initial application of devices that are in sustained skin contact with the client. The change may facilitate the possible expansion of occupational therapy services for consumers and allow for the occupational therapy practitioner, as applicable, to make determinations regarding the initial applications of such devices in compliance with further sections of the Occupational Therapy Practice Act and Board Rules, including Texas Administrative Code §373.1, Supervision of Non-Licensed Personnel, proposed changes concerning which, including concerning the initial application of adaptive/assistive equipment and splints, have also been submitted for publication to the Texas Register.

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Amending 40 TAC §373.1 to update requirements concerning the supervision required for the delegation of certain tasks to non-licensed personnel.

CHAPTER 373. SUPERVISION
40 TAC §373.1

OVERVIEW

The Texas Board of Occupational Therapy Examiners proposes amendments to 40 Texas Administrative Code §373.1, Supervision of Non-Licensed Personnel. The proposed changes cleanup and clarify the section and revise requirements concerning the supervision required for the delegation of certain tasks to non-licensed personnel.

DETAILS

The section currently includes a list of tasks that an occupational therapy practitioner may delegate to non-licensed personnel. Changes to the section would remove general items that are not specific to occupational therapy practice. Such items concern routine department maintenance, transportation of clients, preparation or set up of intervention equipment and work area, and assisting clients with their personal needs during the intervention.

The changes would also include the removal of a provision that requires the on-site presence of the occupational therapy practitioner for the initial application of adaptive/assistive equipment and splints. The change will enable services to be provided via telehealth, make occupational therapy services more accessible for consumers, and allow the occupational therapy practitioner to determine when on-site supervision is necessary.

A proposed change to 40 Texas Administrative Code §372.1, Provision of Services, regarding removing a requirement concerning the on-site presence of the occupational therapy practitioner for the initial application of devices that are in sustained skin contact with the client, has also been submitted for publication to the Texas Register.

The section also includes a change to add the clarifying phrase “of the services provided” with regard to the requirement as per subsection (c) of the section that “Supervision of other non-licensed personnel either on-site or via telehealth requires that the occupational therapy practitioner maintain line of sight.”

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Department of State Health Services

Proposed Rule Review Re:

Reviewing Title 25, Part 1, Chapter 91 related to Subsection A, Cancer Registry.

OVERVIEW

The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of Health Services (DSHS), proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 25, Part of the Texas Administrative Code:

Chapter 91, Cancer

Subchapter A, Cancer Registry

§91.1 – Purpose

§91.2 – Definitions

§91.3 – Who Reports, Access to Records

§91.4 – What to Report

§91.5 – When to Report

§91.6 – How to Report

§91.7 – Where to Report

§91.8 – Compliance

§91.9 – Confidentiality and Disclosure

§91.10 – Quality Assurance

§91.11 – Requests for Statistical Cancer Data

§91.12 – Requests and Release of Confidential Cancer Data

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 91, Cancer, may be submitted to HHSC Rules Coordination Office, Mail Code 4102, P.O. Box 13247, Austin, Texas 78711-3247, phone number (512) 221-9021, 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 25, 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=5&ti=25&pt=1&ch=91&sch=A&rl=Y.