Texas Register July 1, 2022 Volume: 47 Number: 26

The Governor

Proclamation 41-3910 Re:

The Governor issued Proclamation 41-3910 renewing the disaster proclamation for all counties in Texas in response to COVID-19.

OVERVIEW

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

BACKGROUND AND JUSTIFICATION

Pursuant to Section 418.017, the Governor authorizes the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.

Pursuant to Section 418.016, any regulatory statute prescribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforcement of any state statute or administrative rule regarding contracting or procurement would impede any state agency’s emergency response that is necessary to cope with this declared disaster, the Governor hereby suspends such statutes and rules for the duration of this declared disaster for that limited purpose.

In accordance with the statutory requirements, copies of this proclamation shall be filed with the applicable authorities.

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Department of Aging and Disability Services

Emergency Rules Re:

New 40 TAC §9.198, requiring providers in the Home and Community-Based Services Program to create and enforce certain infection control practices in response to the ongoing COVID-19 crisis.

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

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, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19.

HHSC is adopting this emergency rule to reduce the risk of spreading COVID-19 to individuals in the HCS program. This new rule describes the requirements HCS program providers must immediately put into place and follow for infection control practices.

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 July 29, 2021, proclamation relating to the continued response to the COVID-19 disaster. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule concerning Program Provider Response to COVID-19.

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Texas Medical Board

Adopted Rules Re:

Amending 22 TAC §173.3 to delineate events that must be contained in a physician’s profile.

CHAPTER 173. PHYSICIAN PROFILES
22 TAC §173.3

OVERVIEW

The Texas Medical Board (Board) adopts amendments to §173.3 concerning Physician-Initiated Updates. The amendments to §173.3 are being adopted with non-substantive changes to the proposed text as published in the March 18, 2022, issue of the Texas Register (47 TexReg 1412). The adopted amendments to §173.3 will be republished.

The amendments to §173.3 specify events that must be reported by a licensed physician to the Board within 30 days after the event. Specifically, the proposed amendments add events required to be contained in the physician’s profile in accordance with §154.006 of the Act.

BACKGROUND AND JUSTIFICATION

The Board received one comment from the Texas Medical Association (TMA) regarding the proposed amendments to §173.3. No one appeared to testify regarding the amendments to §173.3 at the public hearing on June 10, 2022. A summary of the comments relating to §173.3, and the Board responses, are as follows:

Comment No. 1: TMA generally supports the amendments. TMA also requests that TMB provide educational FAQs or bulletins to its licensees on the change, if adopted, so they are aware of the new reporting requirements. Also, TMA suggests the inclusion of potential disciplinary actions TMB is authorized to and might take if a licensee fails to timely report this information.

Board Response: The Board believes that the language as proposed is sufficient and appropriate. Accordingly, the Board declines this suggested change.

The amendments are adopted under the authority of Texas Occupations Code §153.001, which provides authority for the Board to adopt rules necessary to administer and enforce the Medical Practice Act and to adopt rules necessary to regulate and license physicians. The amendments are also adopted pursuant to Texas Occupations Code §154.006, which provides authority for the Board to adopt rules necessary to ensure required information is placed on the physician’s profile.

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Department of State Health Services

Adopted Rules Re:

Repealing 25 TAC §157.41, concerning automated external defibrillators for public access defibrillation.

CHAPTER 157. EMERGENCY MEDICAL CARE
SUBCHAPTER C. EMERGENCY MEDICAL SERVICES TRAINING AND COURSE APPROVAL
25 TAC §157.41

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts the repeal of §157.41, concerning Automated External Defibrillators for Public Access Defibrillation. The repeal of §157.41 is adopted without changes to the proposed text as published in the March 11, 2022, issue of the Texas Register (47 TexReg 1209), and therefore will not be republished.

BACKGROUND AND JUSTIFICATION

The repeal is necessary to comply with Senate Bill (S.B.) 199, 87th Legislature, Regular Session, 2021, related to the usage and education requirement for automated external defibrillators for public access defibrillation. S.B. 199 repealed Texas Health and Safety Code §779.002, Training – ensuring each user of an automated external defibrillator received training given or approved by DSHS. The repeal of §779.002 also removed all rulemaking authority from the Executive Commissioner concerning training requirements. S.B. 199 reassigned the training obligation under the Texas Education Code by amending Title 2, Public Education, Subtitle D, Educators and School District Employees and Volunteers, Chapter 21, Educators, §21.0541 to revise the requirement for the State Board for Educator Certification to adopt rules for automated external defibrillator training.

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In Addition Re:

Preamble for the February 2022 Texas Asbestos Health Protection Rules Penalty Matrix

OVERVIEW

(Editor’s note: In accordance with Texas Government Code, §2002.014, which permits the omission of material which is “cumbersome, expensive, or otherwise inexpedient,” the figure cited in this miscellaneous document is not included in the print version of the Texas Register. The figure is available in the on-line version of the July 1, 2022, issue of the Texas Register.)

The Texas Asbestos Health Protection Act (TAHPA), Chapter 1954 of the Texas Occupations Code (Code), authorizes the Executive Commissioner of Health and Human Services to adopt rules as needed for the Department of State Health Services (DSHS) to regulate demolition and renovation activities to protect the public from asbestos emissions and to license persons engaged in activities including the removal, encapsulation, or enclosure of asbestos in public buildings. The Executive Commissioner, on behalf of DSHS, repealed the previous rules located in Title 25 of the Texas Administrative Code (TAC) Chapter 295, Subchapter C and replaced it with new Title 25 TAC Chapter 296, Texas Asbestos Health Protection Rules (TAHPR). The new rules were posted for adoption in the June 25, 2021, issue of the Texas Register.

Under §296.2(a)(1) and (2) of TAHPR, DSHS adopted by reference the National Emission Standards of Hazardous Air Pollutants specific to Asbestos (NESHAP) found in 40 CFR Part 61, Subpart M, and the Asbestos-Containing Materials in Schools found in 40 CFR Part 763, Subpart E, and Appendices A, C, D, and E. Additionally, DSHS has authority under §1954.351 of TAHPA to impose administrative penalties on persons who violate TAHPA and TAHPR.

DSHS publishes the asbestos penalty matrix (matrix) to inform the public and the regulated asbestos industry about DSHS’s enforcement policies. The penalties set forth in the matrix are created to promote compliance with TAHPA and TAHPR, promote public confidence in the asbestos industry, and deter conduct detrimental to the health and safety of the public by ensuring consistent, uniform, and fair assessment of penalties by DSHS for violations of the TAHPR. The matrix promotes transparency in DSHS’s regulatory efforts to protect the public from asbestos emissions and provides notice of these regulatory standards to the public and the regulated asbestos industry. The matrix provides a corresponding citation to the appropriate section of the asbestos rules or NESHAP, if applicable, for each violation.

The penalty assessed in each enforcement case remains within the discretion of DSHS. As described in TAHPR §296.318(c), DSHS considers the following when determining the amount of a penalty: (1) the person’s history of previous violations, (2) the seriousness of the violation, (3) any hazard to the health and safety of the public, (4) demonstrated good faith efforts to correct the violation and maintain compliance, and (5) any other matter that justice may require for the violation.

The matrix includes the following three violation severity levels as described in TAHPR §296.318(d): severity level I – critical, severity level II – serious, and severity level III – significant. Level I – critical violations have a direct negative impact on public health and safety. Level II – serious violations could threaten public health and safety. Level III – significant violations could lead to more serious consequences for public health and safety if left uncorrected.

Within each severity level, a violation may be determined to be minor, moderate, or major depending on the threat to public health. In determining whether a violation is minor, moderate, or major, DSHS considers factors that increase the risk to the public from exposure to asbestos fibers such as: damage or disturbance to asbestos-containing building materials, condition and quantity of asbestos, method of abatement, occupancy of the building, and likelihood of a repeat violation.

DSHS may offer to settle a disputed claim, if appropriate, through various means, including informal conference, reduced penalty amount, license sanction, or other appropriate lawful means, on a case-by-case basis. In addition to administrative penalties, DSHS may propose license suspension or revocation for egregious or multiple instances of severity level I, critical violations, and severity level II serious violations. A decision made by DSHS related to a violation of TAHPR is based on the circumstances of the case, including current information and laws.

The matrix may be reviewed and revised from time to time. This matrix is effective immediately upon publication in the Texas Register and supersedes the matrix published in the April 17, 2020, edition of the Texas Register.

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Texas Medical Disclosure Panel

Adopted Rules Re:

Amending 25 TAC §§601.2, 601.7, 601.8, concerning procedures requiring full disclosure of specific risks and hazards, informed consent for electroconvulsive therapy, and disclosure and consent for a hysterectomy.

CHAPTER 601. INFORMED CONSENT
25 TAC §§601.2, 601.7, 601.8

OVERVIEW

The Texas Medical Disclosure Panel (Panel) adopts amendments to §601.2, concerning Procedures Requiring Full Disclosure of Specific Risks and Hazards–List A; §601.7, concerning Informed Consent for Electroconvulsive Therapy; and §601.8, concerning Disclosure and Consent for Hysterectomy. Sections 601.2, 601.7, and 601.8 are adopted without changes to the proposed text as published in the April 1, 2022, issue of the Texas Register (47 TexReg 1670) and will not be republished.

BACKGROUND JUSTIFICATION

These amendments are adopted in accordance with Texas Civil Practice and Remedies Code §74.102, which created the Panel to determine which risks and hazards related to medical care and surgical procedures must be disclosed by health care providers or physicians to their patients or persons authorized to consent for their patients and to establish the general form and substance of such disclosure.

SECTION-BY-SECTION SUMMARY

• Amendments to §601.2 modify the list of procedures and risks and hazards in subsection (b) regarding the cardiovascular system; subsection (c) regarding digestive system treatments and procedures; (d) regarding the ear system treatments and procedures; (g) regarding the female genital system treatment and procedures; (o) regarding the respiratory system treatments and procedures; and (s) regarding laparoscopic, thoracoscopic and robotic.
• Amendments to §601.7 incorporate recommendations regarding informed consent for the use of List A anesthesia/analgesia in connection with the administration of electroconvulsive therapy.
• Amendments to §601.8 modify the form regarding the risks and hazards of a hysterectomy. In accordance with Texas Civil Practice and Remedies Code §74.107(e), the Panel provided the proposed amendments to the consent form for hysterectomy to the Texas Medical Board. The Texas Medical Board did not provide any feedback regarding the form.

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Texas Health and Human Services Commission

In Addition Re:

Public Notice: Insulin Drug Copay Changes to CHIP State Plan

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit Amendment 22-0001 to the Texas State Plan for the Children’s Health Insurance Program (CHIP), under Title XXI of the Social Security Act.

BACKGROUND AND JUSTIFICATION

The proposed amendment impacts CHIP members needing brand name insulin drugs who are above 151% up to and including 201% of the federal poverty level by reducing their copay from $35 to $25. The proposed amendment implements the requirements of Senate Bill 827 of the 87th Legislative Session, 2021.

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Public Notice: TANF State Plan Renewal for 2022-2025
Texas Register Announcement: Plan Posted for Public Comment

Public Notice – Temporary Assistance for Needy Families

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will post the draft Temporary Assistance for Needy Families (TANF) State Plan on the HHSC Internet website at https://www.hhs.texas.gov/news for public review by July 1, 2022.

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Texas Council for Developmental Disabilities

In Addition Re:

Request for Applications: TCDD Accessible and Effective Treatment for Substance Use Disorders for People with Developmental Disabilities

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) announces the availability of funds for three organizations to address accessible and effective treatment for substance use disorders for people with developmental disabilities.

BACKGROUND AND JUSTIFICATION

The purpose of offering funding for the projects described in this Request for Applications (RFA) is to promote statewide capacity building and systems change improvements in the prevention, identification, and treatment of substance use disorders (SUD) and to increase the number of individuals with developmental disabilities receiving community-based SUD services and supports from providers with expertise in this field. Projects may expand access through training, or telehealth care and treatment of people with co-occurring SUD and developmental disabilities; improve communication and collaboration among providers and the creation of a framework for sharing expertise across providers from multiple specialties; or may involve policy analysis to address state support structures for expansion of SUD community-based services that consider co-occurring IDD and other conditions.

TCDD has approved funding for up to $150,000 for three organizations for up to five years. Funds available for these projects are provided to TCDD by the U.S. Department of Health and Human Services, Administration on Intellectual and Developmental Disabilities, pursuant to the Developmental Disabilities Assistance and Bill of Rights Act. Funding for the project is dependent on the results of a review process established by TCDD and on the availability of funds. Non-federal matching funds of at least 25% of total project costs are required for projects. Non-federal matching funds of at least 10% of the total project costs are required for project activities conducted in federally designated poverty areas.

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Request for Applications: TCDD Disability Cultural Humility for Elected Officials and Staff

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) announces the availability of funds for one organization to develop and conduct Disability Cultural Humility for Elected Officials and Staff.

BACKGROUND AND JUSTIFICATION

The purpose of offering funding for the projects described in this Request for Applications (RFA) is to provide resources and promote learning to give elected officials and their staff the tools they need to address public issues with disability in mind, how to ask important questions respectfully, and how and when to enter conversations with the disability community. The training program should include guidance on how elected officials should engage self-advocates and family members in the policy making process. Post-training evaluation plans should include ways to measure the comfort-level of elected officials and their staff, along with how people with disabilities feel when interacting with public offices.

TCDD has approved funding for up to $150,000 for one organization for up to five years. Funds available for these projects are provided to TCDD by the U.S. Department of Health and Human Services, Administration on Intellectual and Developmental Disabilities, pursuant to the Developmental Disabilities Assistance and Bill of Rights Act. Funding for the project is dependent on the results of a review process established by TCDD and on the availability of funds. Non-federal matching funds of at least 25% of total project costs are required for projects. Non-federal matching funds of at least 10% of the total project costs are required for project activities conducted in federally designated poverty areas.

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Request for Applications: TCDD Equipping People with Disabilities to be Community Researchers in Participatory Action Research

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) announces the availability of funds for two organizations to develop and conduct training for people with disabilities to be community researchers in a Participatory Action Research model.

BACKGROUND AND JUSTIFICATION

The purpose of offering funding for the projects described in this Request for Applications (RFA) is to promote an equal relationship between research entities and community member research participants by actively including community members in project development, implementation, and outcomes. This model focuses less on doing research on or for the community and more on doing research with the community to improve the quality of project results. Participatory research takes place in public policy forums such as the legislature, health and human services studies, medical settings, and non-profit providers–not just in universities. Projects will focus on enhancing self-advocates’ opportunities to have a voice in the research process and increasing connections between researchers and the disability community.

TCDD has approved funding for up to $150,000 for two organizations for up to three years. Funds available for these projects are provided to TCDD by the U.S. Department of Health and Human Services, Administration on Intellectual and Developmental Disabilities, pursuant to the Developmental Disabilities Assistance and Bill of Rights Act. Funding for the project is dependent on the results of a review process established by TCDD and on the availability of funds. Non-federal matching funds of at least 25% of total project costs are required for projects. Non-federal matching funds of at least 10% of the total project costs are required for project activities conducted in federally designated poverty areas.

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Request for Applications: TCDD Promoting Civic Engagement Among Individuals with Developmental Disabilities

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) announces the availability of funds for one organization to develop and conduct training to promote Civic Engagement Among Individuals with Developmental Disabilities.

BACKGROUND AND JUSTIFICATION

The purpose of offering funding for the projects described in this Request for Applications (RFA) is to support people with developmental disabilities and their families to participate in the policy making process and take part in the design of and have access to needed community services and individualized supports. By bringing the perspectives and experiences of individuals with disabilities into our systems, our policies can become more creative, flexible, and sustainable for the future. Civic engagement training programs will provide needed experience and skills for individuals to fully engage in civil discourse and dialogue within our communities through volunteering, discussing community issues with others, or serving in leadership roles in an organization, community, local government, and/or state government.

TCDD has approved funding for up to $100,000 for one organization for up to two years. Funds available for these projects are provided to TCDD by the U.S. Department of Health and Human Services, Administration on Intellectual and Developmental Disabilities, pursuant to the Developmental Disabilities Assistance and Bill of Rights Act. Funding for the project is dependent on the results of a review process established by TCDD and on the availability of funds. Non-federal matching funds of at least 25% of total project costs are required for projects. Non-federal matching funds of at least 10% of the total project costs are required for project activities conducted in federally designated poverty areas.