Texas Register April 29, 2022 Volume: 47 Number: 17

The Governor

Appointments Re:

The Governor appointed two individuals to the Correctional Managed Health Care Committee.

Appointments for April 13, 2022

Appointed to the Correctional Managed Health Care Committee for a term to expire February 1, 2025:

• Brian P. Edwards, M.D. of El Paso, Texas (replacing Diego De la Mora, M.D. of Horizon City, who resigned).
• Julia A. Hiner, M.D. of Houston, Texas (replacing Jeffrey K. “Jeff” Beeson, D.O. of Crowley, whose term expired).

---

Texas Health and Human Services Commission

Proposed Rules Re:

Amending 1 TAC §353.4, §353.7 to outline Managed Care Organization requirements concerning out-of-network providers and coordination of benefits with primary health insurance coverage.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER A. GENERAL PROVISIONS
1 TAC §353.4, §353.7

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.4, concerning Managed Care Organization Requirements Concerning Out-of-Network Providers, and §353.7, concerning Coordination of Benefits with Primary Health Insurance Coverage.

BACKGROUND AND JUSTIFICATION

The purpose of this proposal is to implement Senate Bill (S.B.) 1648, 87th Legislature, Regular Session, 2021 that amended Texas Government Code §533.038(g) and added new subsections (h) and (i) to §533.038.

The amendment to §533.038(g) removed the requirement for a member to have and maintain primary health benefit plan coverage in addition to Medicaid coverage to utilize the specialty provider provision in §533.038(g).

Section 533.038(h) requires a managed care organization (MCO) to develop a simple, timely and efficient process and make a good faith effort to negotiate a single-case agreement with a specialty provider.

Section 533.038(i) clarifies that a single-case agreement with a specialty provider is not considered accessing an out-of-network provider for the purposes of Medicaid MCO network adequacy requirements.

SECTION-BY-SECTION SUMMARY

• The proposed amendment to §353.4 updates a reference to §353.7 to align with the proposed amendment to §353.7.
• The proposed amendment to §353.7 revises the title of the section from “Coordination of Benefits with Primary Health Insurance Coverage” to “Continuity of Care with Out-of-Network Specialty Providers.” HHSC revised the title of the section to align with amended Texas Government Code §533.038(g) that removed the requirement for a member to have and maintain primary health benefit plan coverage to utilize the specialty provider provision in §533.038(g).
• The proposed amendment to §353.7(a) deletes “and has and maintains healthcare coverage under a primary health benefit plan.” The proposed amendment deletes “with which the member is receiving care through the primary health benefit plan” and replaces it with “from whom the member is receiving care” and moves “at the time of the member’s enrollment into the health care MCO” directly after “from whom the member is receiving care.” These changes align the rule with amended §533.038(g).
• The proposed amendment to §353.7(b) deletes the subsection in its entirety as the definition of “primary health benefit plan” is no longer necessary.
• The proposed amendment to §353.7(c) renumbers the subsection to (b).
• The proposed amendment to §353.7(d) renumbers the subsection to (c).
• The proposed amendment to §353.7(e) renumbers the subsection to (d). Renumbered subsection (d), concerning the qualifying reasons an MCO no longer has to comply with the reasonable reimbursement methodology for authorized services performed by out-of-network providers as described in §353.4(f)(2), is amended by: (1) inserting “including a single-case agreement” as an example of an agreement an MCO may reach under the alternate-reimbursement-agreement qualifying reason, (2) striking “the member is no longer enrolled in a primary health benefit plan” as a qualifying reason, and (3) striking “alternate” and inserting “in-network” so that a member or member’s legally authorized representative selecting an in-network (not alternate) specialty provider is now a qualifying reason. The last qualifying reason–a member who is no longer enrolled in the health care MCO–is unchanged.
• The proposed amendment to §353.7 adds new subsection (e) to implement §533.038(h). This new subsection requires an MCO to make a good-faith effort to negotiate a single-case agreement with the out-of-network specialty provider using a simple, timely, and efficient process developed by the MCO, if a member wants to remain under the care of a Medicaid enrolled specialty provider that is not in the health care MCO’s provider network.
• The proposed amendment to §353.7 adds new subsection (f) to implement §533.038(i). This new subsection clarifies a single-case agreement with a specialty provider pursuant to §353.7 is not considered accessing an out-of-network provider for the purposes of Medicaid MCO network adequacy requirements.

---

Amending 1 TAC §355.8443 to clarify reimbursement methodology for School Health and Related Services (SHARS).

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 23. EARLY AND PERIODIC SCREENING, DIAGNOSIS, AND TREATMENT (EPSDT)
1 TAC §355.8443

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.8443, concerning Reimbursement Methodology for School Health and Related Services (SHARS).

BACKGROUND AND JUSTIFICATION

The proposed rule amendment to §355.8443 adds text to align with the implementation of House Bill (H.B.) 706, 86th Legislature, Regular Session, 2019. H.B. 706 amended the Texas Education Code to permit SHARS providers to bill and receive reimbursement for allowable audiology services provided to Medicaid-eligible children as prescribed in a plan created under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794). H.B. 706 requires HHSC to adopt rules necessary to implement Texas Education Code Section 38.033 (redesignated as Section 38.034 by H.B. 3607, 87th Legislature, Regular Session, 2021) in consultation with the Texas Education Agency and as approved by the Centers for Medicare and Medicaid Services.

The proposal also implements changes to increase the integrity of the program by requiring additional detail to be collected regarding services reimbursed through the SHARS program, including data related to both individual recipients and specific services. This rule update also adds detail to increase transparency by clarifying definitions and processes for the SHARS program and includes new language on informal review processes and further information on appeals.

SECTION-BY-SECTION SUMMARY

• The proposed amendment to §355.8443(a) is revised for clarity and refers to rules that permit audiology services prescribed in Section 504 Plan for Medicaid-eligible children to be reimbursed under the SHARS program.
• The proposed amendment to §355.8443(b) adds definitions for “eligible student,” “interim claim,” and “Local Education Agency (LEA),” and relocates two definitions to new subsection (c) and makes minor edits for consistency. Subsequent subsections are relabeled to account for the addition of new subsections.
• New §355.8443(c) refers to the parental consent requirement as described in §354.1342 that is applicable to the cost report ratios, revises the description of the IEP ratio and one-way trip ratio, and adds a description of a new Section 504 Plan ratio.
• New §355.8443(d) provides time study requirements.
• The proposed amendment to §355.8443(e)(1) explains the process for establishing interim rates and frequency for updating interim rates. Subsection (e)(2) is added to describe updated processes and requirements for submitting interim claims and specifies that claims must be valid and reimbursed to meet requirements. Subsequent subsections are relabeled to account for the new addition of subsection (2), and relabeled subsections (e)(3) and (e)(4) are amended for clarity and consistency.
• The proposed amendments to §355.8443(f),(g), and (h) include revisions for clarity and consistency.
• New subsection §355.8443(i) describes the informal review process requirements specific to the SHARS program.
• The proposed amendment to §355.8443(j) adds language providing that if any conflict arise between the applicable sections of Chapter 355, Subchapter A and this section, the provisions of this section will prevail.
• New §355.8443(k) adds a governing statement about SHARS program requirements.
• The proposed amendment to §355.8443(l) adds clarification related to time study, interim claims, and cost reports.

---

Adopted Rules Re:

New 1 TAC §355.207, establishing the criteria for providers to receive retention payments under the terms of the HHSC’s spending plan for the American Rescue Plan Act Home (ARPA) enhanced Home and Community-Based Services (HCBS) funding.

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

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §355.207, concerning American Rescue Plan Act Home and Community-Based Services Provider Retention Payment.

Section 355.207 is adopted with changes to the proposed text as published in the February 4, 2022, issue of the Texas Register (47 Tex Reg 387). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The new section establishes the criteria for providers to receive retention payments under the terms of the Texas Health and Human Services Commission’s (HHSC) spending plan for the American Rescue Plan Act Home (ARPA) enhanced Home and Community-Based Services (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.

---

Amending 1 TAC §355.312 to update reimbursement methodology for nursing facilities.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER C. REIMBURSEMENT METHODOLOGY FOR NURSING FACILITIES
1 TAC §355.312

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.312, concerning Reimbursement Setting Methodology–Liability Insurance Costs.

Section 355.312 is adopted without changes to the proposed text as published in the January 21, 2022, issue of the Texas Register (47 Tex Reg 141). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The purpose of the adopted amendment is to streamline the payment of liability insurance add-on rates by replacing the current certification requirements with an annual provider attestation to be completed during an open enrollment period. The amendment seeks to improve the timeliness of payments for add-on rates to nursing facility (NF) providers serving Medicaid residents for maintaining acceptable liability insurance coverage, in accordance with Section 32.028(h) of the Texas Human Resources Code. The adopted amendment defines eligibility criteria and clarifies how the add-ons are paid for new facilities and for facilities undergoing a change of ownership. This amendment also describes the circumstances under which HHSC may recoup the add-on payments.

---

In Addition Re:

Public Notice – Texas State Plan for Medical Assistance Amendment Effective June 1, 2022

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 June 1, 2022.

BACKGROUND AND JUSTIFICATION

The purpose of the amendment is to update the fee schedules in the current state plan by adjusting fees, rates, or charges for the following services:

• Physcians; and
• Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS).

Interested parties may obtain additional information and/or a free copy of the proposed amendment by contacting Shaneqwea James, 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, (which were formerly the local offices of the Texas Department of Aging and Disability Services).

---

Texas Department of Licensing and Regulation

Adopted Rules Re:

Amending 16 TAC §§114.20 – 114.22, 114.27, 114.29, 114.40, 114.50, 114.75, and 114.80 to reflect current Department procedures, amend outdated rule language, and eliminate unnecessary fees related to orthotists and prosthetists.

CHAPTER 114. ORTHOTISTS AND PROSTHETISTS
16 TAC §§114.20 – 114.22, 114.27, 114.29, 114.40, 114.50, 114.75, 114.80

OVERVIEW

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 114, §§114.20-114.22, 114.27, 114.29, 114.40, 114.50, 114.75, and 114.80, regarding the Orthotists and Prosthetists Program, without changes to the proposed text as published in the November 5, 2021, issue of the Texas Register (46 Tex Reg 7485). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

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

The adopted rules implement changes identified by the Texas Department of Licensing and Regulation (Department) as a result of the four-year rule review process conducted under Texas Government Code §2001.39. The adopted rules are necessary to update rule provisions to reflect current Department procedures, amend outdated rule language, and eliminate unnecessary fees.

SECTION-BY-SECTION SUMMARY

• The adopted rules amend §114.20, Applications, by permitting submission of official transcripts and references in a manner prescribed by the Department, eliminating the requirement to submit proof of completion of the jurisprudence examination at every other renewal application, and removing outdated language regarding the disapproval of applications.
• The adopted rules amend §114.21, Licenses and Licensing Procedures, by eliminating a reference to the jurisprudence examination and clarifying the language requiring display of a license at the primary location of practice or place of employment.
• The adopted rules amend §114.22, Examination for Licensure as a Prosthetist, Orthotist, or Prosthetist/Orthotist, by inserting a reference to initial applicants completing the jurisprudence examination, removing outdated language related to the administration of the examination by the Department, and making clarifying changes to the section to reflect the current practices of the Department and its designee regarding the examination.
• The adopted rules amend §114.27, Assistant License, to revert language to the previous requirements of the section before erroneous language was inserted due to a clerical error. The language in the adopted rules is modeled on the text of the section as it existed in the version of the rule adopted to be effective October 1, 2016 (41 TexReg 4467), with minor changes to clarify the scope of supervision for assistants. The current rule text contains errors in subsection (c) due to a mistaken submission by Department staff in the version of the rule effective September 1, 2018 (43 TexReg 5362).
• The adopted rules amend §114.29, Accreditation of Facilities, to simplify submission requirements for changing a practitioner-in-charge or safety manager, and to eliminate the reference to submitting a fee for changing either of those positions.
• The adopted rules amend §114.40, Renewal, by removing the requirement to submit proof of completing the jurisprudence examination and changing the process for voluntary charity care license holders by eliminating the delay until the next renewal period if they wish to reinstate their license type to active status.
• The adopted rules amend §114.50, Continuing Education, by clarifying that live or pre-recorded instructor-directed activities may be offered in-person or using telecommunications or information technology that permits two-way interaction between the instructor and the attendee, classifying interactive computer-generated learning activities as a self-study activity, and making clarifying edits to the section based on these changes.
• The adopted rules amend §114.75, Scope and Conditions of Practice, by adding telehealth to the scope of practice in a facility, in addition to the existing offsite practice authorized under the section, limiting the offsite or telehealth practice to the licensees’ scope of practice, and removing a reference to “registrants.”
• The adopted rules amend §114.80, Fees, to eliminate the fee for changing a practitioner-in-charge or safety manager, and to eliminate the fees for renewal of a voluntary charity care license type.

---

Amending 16 TAC §130.27 to update advisory board meeting requirements related to the podiatric medicine program.

CHAPTER 130. PODIATRIC MEDICINE PROGRAM
SUBCHAPTER B. ADVISORY BOARD
16 TAC §130.27

OVERVIEW

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 130, Subchapter B, §130.27, without changes to the proposed text as published in the January 28, 2022, issue of the Texas Register (47 Tex Reg 234). These rules will not be republished.

The adopted rules amend §130.27, Meetings. The adopted rules amend the title of the rule to “Advisory Board Meetings and Duties of Department.” The adopted rules duplicate the provisions of existing 16 TAC §100.20, Providing Information to Advisory Boards for Certain Health-Related Programs, with minor changes to the text making it podiatry-specific. The adopted rules also relocate 16 TAC §100.31, Rules Regarding the Podiatric Medicine Program, and §100.50, Continuing Education Procedures for the Podiatric Medicine Program, to this rule section, creating new subsections and re-lettering the existing rule text accordingly. The Department’s rules in Chapter 100 are being amended to remove podiatry references and §100.31 and §100.50 are being repealed in a concurrent rulemaking.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 130 implement Texas Occupations Code Chapter 202, Podiatrists.

The adopted rules implement certain podiatry-specific provisions required by Texas Occupations Code §51.2032. The adopted rules are necessary to relocate these provisions from their existing locations to the chapter of the Texas Department of Licensing and Regulation (Department) rules specifically regulating podiatry. This rulemaking is accompanied by another rulemaking related to 16 TAC Chapter 100, regarding General Provisions for Health-Related Programs, and the reorganization of that chapter has resulted in the need for the adopted rules.

---

New 16 TAC §130.75, implementing certain podiatry-specific provisions as required by Texas Occupations Code §51.2032.

CHAPTER 130. PODIATRIC MEDICINE PROGRAM
SUBCHAPTER G. ENFORCEMENT
16 TAC §130.75

OVERVIEW

The Texas Commission of Licensing and Regulation (Commission) adopts a new rule at Subchapter G, §130.75, regarding the Podiatry program, without changes to the proposed text as published in the January 28, 2022, issue of the Texas Register (47 Tex Reg 234). These rules will not be republished.

The adopted rules adopt new §130.75, Establishment of Enforcement Procedures. This new rule creates a podiatry-specific version of the text of existing 16 TAC §100.40, Enforcement Procedures for Certain Health-Related Programs.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 130 implement Texas Occupations Code Chapter 202, Podiatrists.

The adopted rules implement certain podiatry-specific provisions required by Texas Occupations Code §51.2032. The adopted rules are necessary to relocate these provisions from their existing locations to the chapter of the Texas Department of Licensing and Regulation (Department) rules specifically regulating podiatry. This rulemaking is accompanied by another rulemaking related to 16 TAC Chapter 100, regarding General Provisions for Health-Related Programs, and the reorganization of that chapter has resulted in the need for the adopted rules.

---

Proposed Rules Re:

The Texas Department of Licensing and Regulation filed a Notice of Intent to Review to consider for re-adoption, revision, or repeal Chapter 117, Massage Therapy; Chapter 121, Behavior Analyst; and Chapter 130, Podiatric Medicine Program.

OVERVIEW

The Texas Department of Licensing and Regulation (Department) files this Notice of Intent to Review to consider for re-adoption, revision, or repeal the chapters listed below, in their entirety, contained in Title 16, Part 4, of the Texas Administrative Code. This review is being conducted in accordance with Texas Government Code §2001.039.

Rule Chapters Under Review

• Chapter 117, Massage Therapy
• Chapter 121, Behavior Analyst
• Chapter 130, Podiatric Medicine Program

During the review, the Department will assess whether the reasons for adopting or readopting the rules in these chapters continue to exist. The Department will review each rule to determine whether it is obsolete, whether the rule reflects current legal and policy considerations, and whether the rule reflects current Department procedures. This review is required every four years.

DETAILS

Written comments regarding the review of these chapters may be submitted electronically on the Department’s website at https://ga.tdlr.texas.gov:1443/form/gcerules (select the appropriate chapter name for your comment); by facsimile to (512) 475-3032; or by mail to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

Any proposed changes to the rules in these chapters as a result of the rule review will be published in the Proposed Rules section of the Texas Register. The proposed rules will be open for public comment before final adoption by the Texas Commission of Licensing and Regulation, the Department’s governing body, in accordance with the requirements of the Administrative Procedure Act, Texas Government Code, Chapter 2001.

---

Department of State Health Services

Proposed Rule Reviews Re:

HHSC on behalf of DSHS proposes to review and consider for readoption, revision, or repeal Chapter 101, which concerns tobacco.

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 1 of the Texas Administrative Code:

Chapter 101, Tobacco

• §101.1 – Purpose
• §101.2 – Definitions
• §101.3 – General Requirements for Annual Reports by Manufacturers
• §101.4 – Ingredient Reporting Requirements
• §101.5 – Cigarette Nicotine Yield Rating Reporting Requirements
• §101.6 – Tobacco Products–Excluding Cigars, Nicotine Reporting Requirements
• §101.7 – Security of Report Information
• §101.10 – Public Information

BACKGROUND AND JUSTIFICATION

This review is conducted pursuant to the requirements of the 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 consider whether these rules should be repealed, readopted, or readopted with amendments.

Comments on the review of Chapter 101, Tobacco, 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 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=4&ti=25&pt=1&ch=101&rl=Y