Texas Register May 20, 2022 Volume: 47 Number: 20

Texas Register Table of Contents

1 Texas Health and Human Services Commission
2 Department of State Health Services
- - 2.0.1 Adopted Rules Re:
    - 2.0.1.1 Amending 25 TAC §§405.261 – 405.277, 405.279 to update internal agency practices related to reviewing deaths of individuals served by community mental health centers.
    - 2.0.1.2 Repealing 25 TAC §§405.264, 405.265, 405.267, 405.270, 405.271, 405.273, 405.277, 405.279, to remove sections, references, and language related to the internal process by which reviews of deaths in state hospitals occur.
3 Texas Board of Occupational Therapy Examiners
- - 3.0.1 Adopted Rules Re:

Texas Health and Human Services Commission

Emergency Rules Re:

Renewing for a 60-day period 26 TAC §745.115, originally published on January 21, 2022, clarifying that a program that provides care exclusively to unlawfully present individuals is exempt from licensure and regulation by HHSC.

CHAPTER 745. LICENSING
SUBCHAPTER C. OPERATIONS THAT ARE EXEMPT FROM REGULATION
DIVISION 2. EXEMPTIONS FROM REGULATION
26 TAC §745.115

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Texas Administrative Code Title 26 Part 1, Chapter 745, Licensing, new §745.10301 and amended §745.115, in response to the Governor’s May 31, 2021, proclamation certifying an ongoing and imminent threat due to individuals unlawfully crossing the Texas-Mexico border.

The new emergency rule §745.10301 provides that child-care programs that are exempt from licensure and regulation by HHSC operate separately from child-care operations that are licensed or certified by HHSC. The emergency amendment of §745.115 clarifies that a program that provides care exclusively to unlawfully present individuals, as defined in §745.10301, is exempt from licensure and regulation by HHSC.

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 continue complying with the Governor’s direction in the May 31, 2021, proclamation declaring a state of disaster in certain Texas counties and for affected state agencies. In this proclamation, the Governor directed HHSC to take all necessary steps to discontinue state licensing of certain child-care facilities that shelter or detain unlawful immigrants or other individuals not lawfully present in the United States. The Governor suspended Texas Human Resources Code §42.046 and §42.048 and all other relevant laws to the extent necessary for HHSC to comply with this direction. To date, this proclamation remains in effect, and HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of these emergency rule and emergency rule amendment until such time that HHSC can adopt permanent rules to comply with the Governor’s declaration.

Renewing for a 60-day period 26 TAC §745.10301, originally published on January 21, 2022, providing that child-care programs that are exempt from licensure and regulation by HHSC operate separately from child-care operations that are licensed or certified by HHSC.

CHAPTER 745. LICENSING
SUBCHAPTER X. EMERGENCY RULES
26 TAC §745.10301

OVERVIEW

BACKGROUND AND JUSTIFICATION

Proposed Rules Re:

Amending 26 TAC §550.108, concerning temporary change of ownership licenses for prescribed pediatric extended care centers and completing health inspection of centers while new owner has a temporary change of ownership license.

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER B. LICENSING APPLICATION, MAINTENANCE, AND FEES
26 TAC §550.108

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §550.108, concerning Change of Ownership License Application Procedures and Issuance.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to authorize HHSC to issue a temporary change of ownership license in the name of the new owner of a prescribed pediatric extended care center (PPECC) and to complete a health inspection of the center while the new owner holds this temporary change of ownership license. The proposed amendment also authorizes HHSC to extend the duration of the temporary change of ownership license to allow HHSC additional time to perform the health inspection of the center.

These proposed amendments also update the licensure process to reflect the transition from paper applications to the use of the online licensure portal called Texas Unified Licensure Information Portal (TULIP) and to describe other processes relating to licensure and change of ownership.

The proposed amendments also add provisions to address the process for a license holder to change its name or add an owner with a disclosable interest when the center does not undergo a change of ownership.

In addition, the proposed amendments make non-substantive changes to add clarity; remove redundant language; change the lettering of the subsections to account for the addition of provisions; update rule references in response to the administrative transfer of the chapter from 40 Texas Administrative Code (TAC), Chapter 15, to 26 TAC Chapter 550; reorganize some provisions so that related topics are grouped together to facilitate navigation within the rule; and make edits to improve readability.

SECTION-BY-SECTION SUMMARY

The proposed amendment changes the title of the section by adding “and Notice of Changes” after “Change of Ownership License Application Procedures and Issuance.”
The proposed amendment in subsection (a) adds a new definition for the term “temporary change of ownership license” to mean a temporary license issued to an applicant who proposes to become the new operator of a center that exists on the date the application is submitted. This proposed definition clarifies the meaning of the new term “temporary change of ownership license” as used in the rule.
The proposed amendments in new subsection (b) require the applicant to obtain a temporary change of ownership license followed by an initial three-year license in accordance with the section; explain that when HHSC approves the change of ownership by issuing a temporary change of ownership license to the new license holder, the current license holder’s license becomes invalid as of the change of ownership’s effective date indicated in the application; remove redundant language in current subsection (b) about the application requirements for an initial three-year license; and explain that between the change of ownership’s effective date and the issuance of the temporary change of ownership license, the center’s current license holder remains responsible under its license, although the applicant may operate a center on behalf of the current license holder during this period of time.
The proposed amendments in subsection (c) explain what the applicant is required to submit through HHSC’s online portal TULIP; updates rule references in response to the administrative transfer of the chapter from 40 TAC Chapter 15 to 26 TAC Chapter 550; and directs the applicant and the center’s current license holder to submit a signed and notarized Change of Ownership Transfer Affidavit HHSC Form 1092 through the online portal. In January 2021, HHSC began requiring the use of this new form for changes of ownership involving assisted living facilities, nursing facilities, intermediate care facilities for individuals with an intellectual disability or related conditions, day activity and health services facilities, PPECCs, and home and community support services agencies.
The proposed amendments in subsection (d) update rule references in response to the administrative transfer of the chapter from 40 TAC Chapter 15 to 26 TAC Chapter 550.
The proposed amendments in subsections (e) and (f) make minor grammatical and formatting changes for clarity.
The proposed amendments in subsection (g) set forth the requirements necessary for HHSC to issue a temporary change of ownership license; authorize HHSC to issue a temporary change of ownership license in the new owner’s name and to complete a health inspection while the new owner holds a temporary change of ownership license; specify that the issuance of the temporary change of ownership license constitutes HHSC’s written notice of approval of the application for the change of ownership; and clarify the effective date requirements for the license.
The proposed amendment in subsection (h) establishes the expiration date of the temporary change of ownership license.
The proposed amendment in subsection (i) allows HHSC, in its sole discretion, to extend a temporary change of ownership license for one term of 90 days based upon extenuating circumstances. This change gives HHSC the flexibility to extend the duration of the license to allow HHSC additional time to perform the health inspection of the center.
The proposed amendments in new subsection (j) state that HHSC conducts a health inspection after HHSC issues a temporary change of ownership license and before issuance of a three-year license.
The proposed amendments in new subsection (k) state that HHSC, in its sole discretion, may conduct an on-site Life Safety Code inspection of the center after issuing a temporary change of ownership license.
The proposed amendments in new subsection (l) specify the requirements for HHSC to determine whether to issue the temporary change of ownership license holder a three-year license. Among other requirements, the center must pass the health inspection described in the rule. The proposed amendments also remove current subsections (j) and (k) because they are redundant with other provisions in the rule, as amended.
The proposed amendments add new subsection (m) to outline the process for a license holder to change its name when a change of ownership is not involved. This change is consistent with similar provisions in the change of ownership rules for other long-term care providers.
The proposed amendments add new subsection (n) to describe the process for a license holder to add an owner with a disclosable interest when a change of ownership is not involved. This change is consistent with similar provisions in the change of ownership rules for other long-term care providers.

Amending 26 TAC §551.16, concerning temporary change of ownership licenses for owners of an intermediate care facility for individuals with intellectual disabilities or related conditions and completing health inspection of centers while new owner has a temporary change of ownership license.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER B. LICENSING APPLICATION, MAINTENANCE, AND FEES
26 TAC §551.16

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §551.16, concerning Change of Ownership and Notice of Changes, and to §551.214(d), concerning Protection of Residents After Report of Abuse, Neglect, and Exploitation, to correct a clerical error in the existing Texas Administrative Code.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to authorize HHSC to issue a temporary change of ownership license in the name of the new owner of an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) and to complete a health inspection of the facility while the new owner holds this temporary change of ownership license. The proposed amendment also authorizes HHSC to extend the duration of the temporary change of ownership license to allow HHSC additional time to perform the health inspection of the facility.

The proposed amendments also update the licensure process relating to change of ownership and make non-substantive changes to add clarity, improve consistency in the usage of terms, change the lettering of the subsections to account for the addition of provisions, and make edits to improve readability.

SECTION-BY-SECTION SUMMARY

The proposed amendment in §551.16(a) adds a new definition for the term “temporary change of ownership license” to mean a temporary license issued to an applicant who proposes to become the new operator of a facility that exists on the date the application is submitted. This proposed definition clarifies the meaning of the new term “temporary change of ownership license” as used in the rule. The amendment also adds language to state that once HHSC approves and issues a temporary change of ownership license, the new owner becomes responsible.
The proposed amendments in §551.16(b) require the applicant to obtain a temporary change of ownership license followed by an initial three-year license in accordance with the section; explain that when HHSC approves the change of ownership by issuing a temporary change of ownership license to the new license holder, the current license holder’s license becomes invalid as of the change of ownership’s effective date indicated in the application; and clarify that between the effective date of the change of ownership and the issuance of the temporary change of ownership license, the current license holder remains responsible under its license, although the applicant may operate a facility on behalf of the current license holder during this period of time.
The proposed amendments in §551.16(c) explain what the applicant is required to submit through HHSC’s online portal, the Texas Unified Licensure Information Portal (TULIP). The amendments also direct the applicant and the facility’s current license holder to submit a signed and notarized Change of Ownership Transfer Affidavit HHSC Form 1092 through the online portal. In January 2021, HHSC began requiring the use of this new form for changes of ownership involving assisted living facilities, nursing facilities, ICF/IIDs, day activity and health services facilities, prescribed pediatric extended care centers, and home and community support services agencies.
The proposed amendments in §551.16(d) and (e) make minor grammatical and formatting changes for clarity.
The proposed amendments in §551.16(f) set forth the requirements necessary for HHSC to issue a temporary change of ownership license; authorize HHSC to issue a temporary change of ownership license in the new owner’s name and to complete a health inspection while the new owner holds a temporary change of ownership license; specify that the issuance of the temporary change of ownership license constitutes HHSC’s written notice of approval of the application for the change of ownership; and clarify the effective date requirements for the license.
The proposed amendment in §551.16(g) establishes the expiration date of the temporary change of ownership license.
The proposed amendment in §551.16(h) allows HHSC, in its sole discretion, to extend a temporary change of ownership license for a term of 90 days at a time based upon extenuating circumstances. This change gives HHSC the flexibility to extend the duration of the license to allow HHSC additional time to perform the health inspection of the facility.
The proposed amendments in §551.16(i) state that HHSC conducts a health inspection after HHSC issues a temporary change of ownership license and before issuance of a three-year license.
The proposed amendments in §551.16(j) state that HHSC, in its sole discretion, may conduct an on-site Life Safety Code inspection of the facility after issuing a temporary change of ownership license.
The proposed amendments in §551.16(k) specify the requirements for HHSC to determine whether to issue the temporary change of ownership license holder a three-year license. Among other requirements, the facility must pass the health inspection described in the rule.
The proposed amendments change the lettering of current §551.16(h) to new §551.16(l) and current §551.16(i) to new §551.16(m) to account for the addition of a new §551.16(a).
The proposed amendment to §551.214 inserts “legally authorized representative (LAR)” to correct a clerical error.

Amending 26 TAC §553.35, concerning temporary change of ownership licenses for assisted living facilities and completing health inspection of centers while new owner has a temporary change of ownership license.

CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
SUBCHAPTER B. LICENSING
26 TAC §553.35

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §553.35, concerning Change of Ownership and Notice of Changes.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to authorize HHSC to issue a temporary change of ownership license in the name of the new owner of an assisted living facility (ALF) and to complete a health inspection while the new owner holds this temporary change of ownership license. The proposed amendment also authorizes HHSC to extend the duration of the temporary change of ownership license to allow HHSC additional time to perform the health inspection of the ALF.

The proposed amendments also allow HHSC, under certain circumstances, to waive the requirement for an applicant to submit a complete application at least 30 days before the anticipated date of the change of ownership.

The proposed amendments also update the licensure process relating to change of ownership and addresses the process for a license holder to change its name when the facility does not undergo a change of ownership and makes non-substantive changes to add clarity, remove redundant language, change the lettering of the subsections to account for the addition of provisions, reorganize some provisions so that related topics are grouped together to facilitate navigation within the rule, and make edits to improve readability.

SECTION-BY-SECTION SUMMARY

The proposed amendment in subsection (a) adds a new definition for the term “temporary change of ownership license” to mean a temporary license issued to an applicant who proposes to become the new operator of a facility that exists on the date the application is submitted. The amendment clarifies the meaning of the new term “temporary change of ownership license” as used in the rule.
The proposed amendments in subsection (b) require the applicant to obtain a temporary change of ownership license followed by an initial three-year license in accordance with the section; explain that when HHSC approves the change of ownership by issuing a temporary change of ownership license to the new license holder, the current license holder’s license becomes invalid as of the change of ownership’s effective date indicated in the application; and explain that between the change of ownership’s effective date and the issuance of the temporary change of ownership license, the facility’s current license holder remains responsible under its license, although the applicant may operate the facility on behalf of the current license holder during this period of time.
The proposed amendments in subsection (c) explain what the applicant is required to submit and clarify that an applicant may submit an incomplete application with a letter explaining the circumstances that prevented the inclusion of the missing information through HHSC’s online portal, the Texas Unified Licensure Information Portal (TULIP). These changes are consistent with the change of ownership license application processes for other long-term care providers. The proposed amendments also direct the applicant and the facility’s current license holder to submit a signed and notarized Change of Ownership Transfer Affidavit HHSC Form 1092 through the online portal. In January 2021, HHSC began requiring the use of this new form for changes of ownerships involving ALFs, nursing facilities (NFs), intermediate care facilities for individuals with an intellectual disability or related conditions (ICF/IIDs), day activity and health services (DAHS) facilities, prescribed pediatric extended care centers (PPECCs), and home and community support services agencies (HCSSAs).
The proposed amendments in subsection (d) make minor clarifying changes and remove change of ownership effective date language that is proposed to be moved to subsection (f)(2).
The proposed amendment removes current subsection (d) because it contains language redundant with 26 Texas Administrative Code (TAC) §553.751(a)(7), which authorizes HHSC to assess an administrative penalty against a person who fails to notify HHSC before the effective date of the change of ownership, and to be consistent with other CHOW rules that do not have this redundant language.
The proposed amendment removes language in current subsection (e) because it is redundant with the language proposed to be added in subsection (b) concerning the responsibility of the current ALF license holder while the application for a temporary license is pending.
The proposed amendment in subsection (e) adds a provision for an applicant to seek a waiver of the requirement to submit a complete application at least 30 days before the anticipated date of the change of ownership if HHSC determines certain circumstances have been demonstrated. This change is consistent with the change of ownership license application processes for other long-term care providers. The amendment also specifies the criteria for HHSC to determine whether to grant a waiver of the 30-day requirement.
The proposed amendments in subsection (f) set forth the requirements necessary for HHSC to issue a temporary change of ownership license, authorize HHSC to issue a temporary change of ownership license in the new owner’s name and to complete a health inspection while the new owner holds a temporary change of ownership license specify that the issuance of the temporary change of ownership license constitutes HHSC’s written notice of approval of the application for the change of ownership, and clarify the effective date requirements for the license.
The proposed amendment in subsection (g) establishes the expiration date of the temporary change of ownership license.
The proposed amendment in subsection (h) allows HHSC, in its sole discretion, to extend a temporary change of ownership license for a term of 90 days at a time based upon extenuating circumstances. This change gives HHSC the flexibility to extend the duration of the license to allow HHSC additional time to perform the health inspection of the facility.
The proposed amendment in subsection (i) states that HHSC conducts a health inspection after HHSC issues a temporary change of ownership license and before issuance of a three-year license.
The proposed amendment in subsection (j) states that HHSC, in its sole discretion, may conduct an on-site Life Safety Code inspection of the facility after issuing a temporary change of ownership license.
The proposed amendments in subsection (k) specify the requirements for HHSC to determine whether to issue the temporary change of ownership license holder a three-year license. Among other requirements, the facility must pass the health inspection described in the rule. In addition, the amendments clarify the effective date of the three-year license.
The proposed amendments in subsections (l), (m), and (n) make edits for clarity.
The proposed amendments add new subsection (o) to outline the process for a license holder to change its name when a change of ownership is not involved. This change is consistent with similar provisions in the change of ownership rules for other long-term care providers.

Amending 26 TAC §559.16, concerning temporary change of ownership licenses for day activity and health services facilities and completing health inspection of facilities while new owner has a temporary change of ownership license.

CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
SUBCHAPTER B. APPLICATION PROCEDURES
26 TAC §559.16

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §559.16, concerning Change of Ownership and Notice of Changes.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to authorize HHSC to issue a temporary change of ownership license in the name of the new owner of a day activity and health service (DAHS) facility and to complete a health inspection of the facility while the new owner holds this temporary change of ownership license. The proposal also authorizes HHSC to extend the duration of the temporary change of ownership license to allow HHSC additional time to perform the health inspection of the DAHS facility.

The proposed amendments also update the licensure process to reflect the transition from paper applications to the use of the online licensure portal called the Texas Unified Licensure Information Portal (TULIP) and to clarify other processes relating to licensure and change of ownership.

The proposed amendments also address the process for a license holder to change its name when the facility does not undergo a change of ownership, and make non-substantive changes to add clarity; correct obsolete references from the legacy agency, Department of Aging and Disability Services (DADS), to HHSC; update rule references in response to the administrative transfer of the chapter from 40 Texas Administrative Code (TAC), Chapter 98, to 26 TAC, Chapter 559; change the lettering of the subsections to account for the addition of provisions; reorganize some provisions so that related topics are grouped together to facilitate navigation within the rule; and make edits to improve readability.

SECTION-BY-SECTION SUMMARY

The proposed amendment in subsection (a) defines the term “temporary change of ownership license” to mean a temporary license issued to an applicant who proposes to become the new operator of a DAHS facility that exists on the date the application is submitted. This proposed definition clarifies the meaning of the new term “temporary change of ownership license” as used in the rule.
The proposed amendments in subsection (b) require the applicant to obtain a temporary change of ownership license followed by an initial three-year license in accordance with the section; explain that when HHSC approves the change of ownership by issuing a temporary change of ownership license to the new license holder, the current license holder’s license becomes invalid as of the change of ownership’s effective date indicated in the application; and explain that between the change of ownership’s effective date and the issuance of the temporary change of ownership license, the facility’s current license holder remains responsible under its license, although, the applicant may operate a facility on behalf of the current license holder during this period.
The proposed amendments in subsection (c) explain what the applicant is required to submit through HHSC’s online portal TULIP. The amendments also direct the applicant and the facility’s current license holder to submit a signed and notarized Change of Ownership Transfer Affidavit HHSC Form 1092 through the online portal. In January 2021, HHSC began requiring the use of this new form for changes of ownerships involving assisted living facilities, nursing facilities, intermediate care facilities for individuals with an intellectual disability or related conditions, DAHS facilities, prescribed pediatric extended care centers, and home and community support services agencies.
The proposed amendments in subsection (d) remove a reference to an outdated rule section in repealed 40 TAC, Chapter 98; and remove outdated DADS application process language in current subsections (b) and (c).
The proposed amendment in subsection (e) requires an applicant to seek a waiver of the requirement to submit a complete application at least 30 days before the anticipated date of the change of ownership if HHSC determines certain circumstances have been demonstrated. This change is consistent with the change of ownership license application processes for other long-term care providers. The amendment also specifies the criteria for HHSC to determine whether to grant a waiver of the 30-day requirement.
The proposed amendments in subsection (f) set forth the requirements necessary for HHSC to issue a temporary change of ownership license; authorize HHSC to issue a temporary change of ownership license in the new owner’s name and to complete a health inspection while the new owner holds a temporary change of ownership license; specify that the issuance of the temporary change of ownership license constitutes HHSC’s written notice of approval of the application for the change of ownership; and clarify the effective date requirements for the license.
The proposed amendment in subsection (g) establishes the expiration date of the temporary change of ownership license.
The proposed amendment subsection (h) allows HHSC, in its sole discretion, to extend a temporary change of ownership license for a term of 90 days at a time based upon extenuating circumstances. This change gives HHSC the flexibility to extend the duration of the license to allow HHSC additional time to perform the health inspection of the DAHS facility.
The proposed amendments in subsection (i) state that HHSC conducts a health inspection after HHSC issues a temporary change of ownership license and before issuance of a three-year license. The proposed amendments also correct obsolete references from the legacy agency, DADS, to HHSC.
The proposed amendments in subsection (j) state that HHSC, in its sole discretion, may conduct an on-site Life Safety Code inspection of the DAHS facility after issuing a temporary change of ownership license. The proposed amendments also correct obsolete references from the legacy agency, DADS, to HHSC.
The proposed amendments in subsection (k) specify the requirements for HHSC to determine whether to issue the temporary change of ownership license holder a three-year license. Among other requirements, the facility must pass the health inspection described in the rule. In addition, the amendments clarify the effective date of the three-year license.
The proposed amendment in subsection (l) corrects obsolete references from the legacy agency, DADS, to HHSC.
The proposed amendments add new subsection (m) to outline the process for a license holder to change its name when a change of ownership is not involved. This change is consistent with similar provisions in the change of ownership rules for other long-term care providers.

Amending 26 TAC §§745.115, 745.139, 745.8605 concerning licensing of governmental entities, combination of exempt and regulated programs, and licensing enforcement actions.

CHAPTER 745. LICENSING
26 TAC §§745.115, 745.139, 745.8605

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §745.115, concerning What programs regulated by other governmental entities are exempt from Licensing regulation; §745.139, concerning What will Licensing do if I operate a combination of exempt and regulated programs; and §745.8605, concerning When can Licensing recommend or impose an enforcement action against my operation, in Title 26, Texas Administrative Code, Chapter 745, Licensing.

BACKGROUND AND JUSTIFICATION

The purpose of this proposal is to amend rules in Chapter 745 that address the subject matter of an emergency rule and an emergency rule amendment adopted in July 2021, relating to operations that are exempt from licensure and regulation by HHSC.

The emergency rule and rule amendment were adopted to comply with Governor Abbott’s direction in a May 31, 2021, proclamation declaring a state of disaster in certain Texas counties and for affected state agencies. In this proclamation, Governor Abbott directed HHSC to discontinue state licensing of certain child-care facilities that provide care or shelter to undocumented immigrants. The Governor suspended §42.046 and §42.048 of the Texas Human Resources Code and all other relevant laws to the extent necessary for HHSC to comply with this direction. Based on the declared disaster, HHSC found that imminent peril to the public health, safety, and welfare of the state required immediate adoption of emergency rules. HHSC adopted an emergency amendment to clarify that a program that provides care exclusively to unlawfully present individuals is exempt from licensure and regulation by HHSC. HHSC also adopted an emergency rule to require a General Residential Operation (GRO) either to cease providing care or shelter to an unlawfully present individual by August 30, 2021, or to surrender its license to HHSC. The emergency rules also provide that child-care programs that are exempt from licensing and regulation by HHSC must be operated separately from GROs that are licensed or certified by HHSC and outlines the enforcement actions HHSC may take if a GRO provides care or shelter to an unlawfully present individual after August 30, 2021.

These rules substantially adapt the content of the emergency rules into regular rules. Accordingly, the proposed amendments reflect the intent and content of the emergency rules but have been updated to (1) make the licensure exemption outlined in the emergency rule amendment ongoing; and (2) incorporate the enforcement components in the emergency rule into CCR’s existing enforcement framework.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.115 adds an exemption from licensure and regulation by HHSC for a program that provides care exclusively to unlawfully present individuals.
The proposed amendment to §745.139 separates the rule into subsections (a) and (b) to clarify that the rule does not apply to an exempt program whose exemption is described in proposed §745.115(1)(B).
The proposed amendment to §745.8605 adds provision of care to an unlawfully present individual to the list of actions against which CCR can recommend or impose an enforcement action.

Amending 26 TAC §§748.7, 748.81, 748.83, 748.85, concerning family residential centers, interpretation of terms in the division, providing shelter and care to unlawfully present individuals, and requirements for operating general residential operations while an exempt program cares for an unlawfully present individual.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
26 TAC §§748.7, 748.81, 748.83, 748.85

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §748.7, concerning How are these regulations applied to family residential centers; and new §748.81, concerning What do certain terms mean in this division, §748.83, concerning May I provide care to or shelter an unlawfully present individual, and §748.85, concerning What are the requirements if I operate my general residential operation while an exempt program separately provides care for an unlawfully present individual, in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations.

BACKGROUND AND JUSTIFICATION

The purpose of this proposal is to amend a rule and add new rules in Chapter 748 that address the subject matter of an emergency rule adopted in July 2021, relating to providing care or shelter to unlawfully present individuals in a General Residential Operation (GRO) licensed by HHSC.

The emergency rule was adopted to comply with Governor Abbott’s direction in a May 31, 2021, proclamation declaring a state of disaster in certain Texas counties and for affected state agencies. In this proclamation, Governor Abbott directed HHSC to discontinue state licensing of certain child-care facilities that provide care or shelter to undocumented immigrants. The Governor suspended §42.046 and §42.048 of the Texas Human Resources Code and all other relevant laws to the extent necessary for HHSC to comply with this direction. Based on the declared disaster, HHSC found that imminent peril to the public health, safety, and welfare of the state required immediate adoption of emergency rules. Consequently, HHSC adopted an emergency rule to require a GRO either to cease providing care or shelter to an unlawfully present individual by August 30, 2021, or to surrender its license to HHSC. The emergency rules also provide that child-care programs that are exempt from licensing and regulation by HHSC must be operated separately from GROs that are licensed or certified by HHSC and outlines the enforcement actions HHSC may take if a GRO provides care or shelter to an unlawfully present individual after August 30, 2021.

These rules substantially adapt the content of the emergency rules into regular rules. Accordingly, the proposed rules and amendment reflect the intent and content of the emergency rule but have been updated to remove timeframes for notifications and permit relinquishment that have since expired.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.7 adds subsection (f) to clarify that the rule applies only as long as a GRO is authorized to provide care for children who are unlawfully present in the United States and in the custody of the federal government.
Proposed new §748.81 adds definitions for the terms “exempt program” and “unlawfully present individual” used in proposed new Division 3, relating to Care of Unlawfully Present Individuals.
Proposed new §748.83 provides that a GRO may not provide care or shelter to an unlawfully present individual. However, this rule also allows the provider to provide care for an unlawfully present individual at an exempt program that operates separately from the GRO.
Proposed new §748.85 specifies the requirements a GRO must follow if operating while an exempt program separately cares for an unlawfully present individual, including (1) notifying CCR in writing; (2) ensuring that the exempt program has separate caregivers or caregivers that do not provide care for both programs simultaneously; (3) ensuring that the exempt program does not use an area of the building or grounds except under certain circumstances specified in a written plan that includes supervision of children in the shared space; and (4) submitting a written plan to CCR detailing how the licensed GRO will operated separately from the exempt program.

In Addition Re:

Public Notice – Texas State Plan for Reimbursement Methodologies for Early and Periodic Screening, Diagnosis and Treatment Comprehensive-Care Program (EPSDT-CCP) Amendment

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan for Early and Periodic Screening, Diagnosis and Treatment under Title XIX of the Social Security Act. The proposed amendment is effective October 1, 2022.

The proposed amendment will update School Health and Related Services (SHARS) pages within the Reimbursement Methodologies for Early and Periodic Screening, Diagnosis and Treatment Comprehensive-Care Program (EPSDT-CCP) section of the state plan. The amendment will allow audiology services prescribed to Medicaid-enrolled students with Section 504 Plans to be reimbursed under the SHARS program. This proposed amendement for audiology services is to comply with House Bill (H.B.) 706, 86th Legislature, Regular Session, 2019, and H.B. 3607, 87th Legislature, Regular Session, 2021.

The amendment will also add interim claiming requirements, remove milestone requirements, and update interim rate calculation and payment language. It will change provisions relating to cost report review and adjustments. The amendment to the methods and standards for setting interim payment rates for services is to implement changes to increase the integrity of the program and allow for additional detail to be collected to increase the specificity of submitted data related to services reimbursed through the SHARS program, for both individual recipients and specific services.

BACKGROUND AND JUSTIFICATION

There may be a fiscal impact as this amendment adds the ability for reimbursement for audiology services for Section 504 eligible students. Current SHARS claims data does not reflect 504 status, so the total fiscal impact cannot be estimated prior to implementation.

No rate hearing required as rates will not change.

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

Department of State Health Services

Adopted Rules Re:

Amending 25 TAC §§405.261 – 405.277, 405.279 to update internal agency practices related to reviewing deaths of individuals served by community mental health centers.

CHAPTER 405. PATIENT CARE–MENTAL HEALTH SERVICES
SUBCHAPTER K. DEATHS OF INDIVIDUALS SERVED BY COMMUNITY MENTAL HEALTH CENTERS
25 TAC §§405.261 – 405.277, 405.279

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to the title of Subchapter K in Texas Administrative Code (TAC) Title 25, Chapter 405, relating to Deaths of Persons Served by TXMHMR Facilities or Community Mental Health and Mental Retardation Centers; amendments to §405.261, concerning Purpose, §405.262, concerning Application, §405.263, concerning Definitions, §405.266, concerning Community Centers: Actions Taken upon the Death of Persons Served, §405.268, concerning Facility Community-Based Services and Community Centers: General Guidelines upon Death of a Person Served, §405.269, concerning Facility Campus-Based Programs, Facility Community-Based Services and Community Centers: Administrative Death Review Determination, §405.272, concerning Facility Community-Based Services and Community Centers: Clinical Death Review Determination, §405.274, concerning Community Centers: Clinical Death Review, §405.275, concerning Facility Campus-Based Programs, Facility Community-Based Services, and Community Centers: Administrative Death Review, §405.276, concerning Reporting of Systemic Issues Emerging from Death Reviews; and the repeal of §405.264, concerning Facility Campus-Based Programs: Actions Taken upon the Death of Person Served; §405.265, concerning Facility Community-Based Services: Actions Taken upon the Death of Person Served; §405.267, concerning Facility Campus-Based Programs: Statutory Requirements; §405.270, concerning Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review Committee; §405.271, concerning Facility Campus-Based Programs: Clinical Death Review Determination; §405.273, concerning Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review, §405.277, concerning Distribution, and §405.279, concerning References.

The subchapter title and §§405.261 – 405.263, 405.266, 405.268, 405.269, 405.274, and 405.275 are adopted with changes to the proposed text as published in the February 25, 2022, issue of the Texas Register (47 TexReg 878). These rules will be republished.

Sections 405.272 and 405.276, and the repeal of §§405.264, 405.265, 405.267, 405.270, 405.271, 405.273, 405.277, and 405.279 are adopted without changes to the proposed text as published in the February 25, 2022, issue of the Texas Register (47 Tex Reg 878). These rules and repeals will not be republished.

BACKGROUND AND JUSTIFICATION

The current TAC provisions reflect internal agency practices that are being updated at the discretion of the State Hospital System Administration. Pursuant to Government Code Section 531.008(c)(5) the HHSC facilities division was created “for the purpose of administering state facilities, including state hospitals and state supported living centers.” In furtherance of this purpose, the State Hospital System is voluntarily participating in a Patient Safety Evaluation System. The updated agency practices are intended to implement the Patient Safety Quality Improvement Act (42 U.S.C. §299, et seq.) and related agency regulations by the United States Department of Health and Human Services (42 C.F.R. Part 3). The amendments and repeals to this subchapter are related to the facility references (which included state hospitals, state schools, and state centers per rule definitions) and modify or repeal language or requirements regarding community center death reviews.

The amendments and repeals remove sections, references, and language related to the internal process by which reviews of deaths in state hospitals occur. The process of reviewing deaths occurs through a federally chartered Patient Safety Organization operated by the Texas A&M University Rural and Community Health Institute. Accordingly, the state hospital system has implemented through its Governing Body an operating procedure that outlines the updated process and procedure for the review process.

Repealing 25 TAC §§405.264, 405.265, 405.267, 405.270, 405.271, 405.273, 405.277, 405.279, to remove sections, references, and language related to the internal process by which reviews of deaths in state hospitals occur.

CHAPTER 405. PATIENT CARE–MENTAL HEALTH SERVICES
SUBCHAPTER K. DEATHS OF INDIVIDUALS SERVED BY COMMUNITY MENTAL HEALTH CENTERS
25 TAC §§405.264, 405.265, 405.267, 405.270, 405.271, 405.273, 405.277, 405.279

OVERVIEW

Sections 405.272 and 405.276, and the repeal of §§405.264, 405.265, 405.267, 405.270, 405.271, 405.273, 405.277, and 405.279 are adopted without changes to the proposed text as published in the February 25, 2022, issue of the Texas Register (47 TexReg 878). These rules and repeals will not be republished.

BACKGROUND AND JUSTIFICATION

Texas Board of Occupational Therapy Examiners

Adopted Rules Re:

Amending 40 TAC §362.1 to clarify and retain the current definition of occupational therapy practice.

CHAPTER 362. DEFINITIONS
40 TAC §362.1

OVERVIEW

The Texas Board of Occupational Therapy Examiners adopts amendments to 40 Texas Administrative Code §362.1. Definitions. The amendments are adopted to clarify and cleanup the section. The amendments are adopted with changes to the proposed text as published in the March 4, 2022, issue of the Texas Register (47 Tex Reg 1071) and will be republished. The change was to not adopt the proposed new definition of occupational therapy practice and instead retain the current definition.

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

The amendments as proposed included 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 would have aligned the definition more closely with language newly available for possible use on a national level from AOTA.

BACKGROUND AND JUSTIFICATION

Public comment from the Texas Medical Association (TMA) was received regarding the proposed new definition of occupational therapy practice. TMA’s comment included concerns regarding the addition of “training in . . . medication management” in (C)(ii), “Identification” and “pain . . . management” in (C)(iii), and “Remediation of . . . low vision” in (C)(xii) of the proposed definition. TMA’s comment included that such changes could be improperly applied to expand scope outside of the Texas Occupational Therapy Practice Act and/or considered how the changes might conflict with existing statutory language. TMA’s comment also considered that such could be misinterpreted by occupational therapy practitioners to allow for the practice of medicine. The comment, for example, considered how the provisions could be misinterpreted to allow for the recommendation of medication treatment, the diagnosis of diseases or disorders, and/or the practice of medicine to treat vision dysfunction. The Board agrees with the comment and the concerns raised therein and will retain the current definition of occupational therapy practice and not adopt the proposed new definition of occupational therapy practice.

Public comment from the American Occupational Therapy Association (AOTA) was also received regarding the proposed new definition of occupational therapy practice. AOTA’s comment included that it supported such as reflective of updates to the Definition of Occupational Therapy Practice for AOTA’s 2021 Model Occupational Therapy Practice Act. AOTA noted that it appreciated the Board’s attention to the updated definition and its promptly proposing amendments to its definition in regulation. The Board agrees with and appreciates the comment, but the Board will not be moving forward with the new definition of occupational therapy practice.

The amendments are adopted under Texas Occupations Code §454.102, Rules, which authorizes the Board to adopt rules to carry out its duties under Chapter 454, including regarding §454.002, Definitions, §454.006, Practice of Occupational Therapy, and §454.213, Accepted Practice; Practitioner’s Referral.

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

OVERVIEW

The Texas Board of Occupational Therapy Examiners adopts amendments to 40 Texas Administrative Code §369.2, Changes of Name or Address, and §369.3, Use of Titles. The amendments to §369.2 add a requirement to notify the Board of phone number changes and revise the rule title. The amendments to §369.3 cleanup and clarify the section and add information regarding the use of the title doctor. The amendments are adopted without changes to the proposed text as published in the March 4, 2022, issue of the Texas Register (47 TexReg 1075) and will not be republished.

BACKGROUND AND JUSTIFICATION

Amendments to §369.2, Changes of Name or Address, will require licensees to update the Board of phone number changes, and a related amendment will 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, an adopted amendment to 40 Texas Administrative Code §362.1, Definitions, has also been submitted to the Texas Register for publication and will remove information regarding phone numbers from the definition of a complete renewal.

Changes to §369.3 will 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.

No comments were received regarding adoption of the amendments.

The amendments are adopted under Texas Occupations Code §454.102, Rules, which authorizes the Board to adopt rules to carry out its duties under Chapter 454, including regarding §454.007, Use of Title of Doctor, and §454.201, License Required; Use of Title.

Amending 40 TAC §371.2 to revise requirements concerning voluntary charity care.

CHAPTER 371. INACTIVE AND RETIRED STATUS
40 TAC §371.2

OVERVIEW

The Texas Board of Occupational Therapy Examiners adopts amendments to 40 Texas Administrative Code §371.2, Retired Status. The changes are adopted to revise requirements concerning voluntary charity care. The amendments are adopted without changes to the proposed text as published in the March 4, 2022, issue of the Texas Register (47 Tex Reg 1077). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The changes will 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.

No comments were received regarding adoption of the amendments.

The amendments are adopted under Texas Occupations Code §454.102, Rules, which authorizes the Board to adopt rules to carry out its duties under Chapter 454, and under Texas Occupations Code §112.051, Reduced License Requirements for Retired Health Care Practitioners Performing Charity Work, which requires each licensing entity to adopt rules providing for reduced fees and continuing education requirements for a retired health care practitioner whose only practice is voluntary charity care.

Amending 40 TAC §372.1 to cleanup and clarify the section 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 adopts amendments to 40 Texas Administrative Code §372.1, Provision of Services. The changes are adopted to cleanup and clarify the section and revise requirements regarding the provision of occupational therapy services, including services delivered via telehealth. The amendments are adopted with changes to the proposed text as published in the March 4, 2022, issue of the Texas Register (47 Tex Reg 1078). The rule will be republished. The change upon adoption was to not adopt the proposed new §372.1(h)(2) and instead retain the current §372.1(h)(2).

BACKGROUND AND JUSTIFICATION

Adopted changes to the section include those that will clarify requirements concerning the provision of occupational therapy services. For example, a provision will be added that will 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 adopted to clarify provisions regarding telehealth and the required client contact with an occupational therapy practitioner. For example, the amendments will 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 will also revise requirements concerning the contact required for an intervention session and will 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, adopted changes concerning which, including concerning the initial application of adaptive/assistive equipment and splints, have also been submitted for publication to the Texas Register.

Public comment from the Texas Occupational Therapy Association (TOTA) was received and included that TOTA supported this proposed rule and that TOTA specifically supported the amendment that includes the removal of the 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. TOTA included that this proposed rule will improve access to care for Texans who might be medically fragile, have limited access to transportation, and live in rural areas to seating and mobility evaluations and other occupational therapy services. TOTA also noted that they can anticipate the continued expansion of telehealth use, and occupational therapy practitioners will be able to compete in all settings.

Public comment from the American Occupational Therapy Association (AOTA) was also received regarding the removal of the provision. AOTA’s comment included that it supported the removal and that removing the provision eliminates a significant barrier to occupational therapy practitioners’ ability to provide that quality care to their clients who may need a wheelchair, durable medical equipment, or other device and that it was also congruent with occupational therapy practitioners’ education and training. The comment also included information regarding recent changes in federal and state regulations that may allow for the expanded use of telehealth and noted the increased use of telehealth by occupational therapy practitioners.

The Board thanked TOTA and AOTA and agreed with the comments and made no changes based on such.

The amendments are adopted under Texas Occupations Code §454.102, Rules, which authorizes the Board to adopt rules to carry out its duties under Chapter 454, including regarding §454.006, Practice of Occupational Therapy, and §454.213, Accepted Practice; Practitioner’s Referral.

Amending 40 TAC §373.1 to revise 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 adopts amendments to 40 Texas Administrative Code §373.1. Supervision of Non-Licensed Personnel. The changes cleanup and clarify the section and revise requirements concerning the supervision required for the delegation of certain tasks to non-licensed personnel. The amendments are adopted without changes to the proposed text as published in the March 4, 2022, issue of the Texas Register (47 TexReg 1081) and will not be republished.

BACKGROUND AND JUSTIFICATION

The section currently includes a list of tasks that an occupational therapy practitioner may delegate to non-licensed personnel. Changes to the section will 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 will 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.

An adopted 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.”

No comments were received regarding adoption of the amendments.