Texas Register July 22, 2022 Volume: 47 Number: 29

Texas Register Table of Contents

1 Texas Health and Human Services Commission
2 Department of Aging and Disability Services
- - 2.0.1 Adopted Rules Re:

Texas Health and Human Services Commission

Proposed Rules Re:

Amending 26 TAC §331.17 to expand minimum qualifications for service coordinators.

CHAPTER 331. LIDDA SERVICE COORDINATION
26 TAC §331.17

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §331.17, concerning Minimum Qualifications.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to change minimum qualifications for service coordinators in §331.17. Local intellectual and developmental disability authorities (LIDDAs) across Texas are reporting workforce challenges, particularly among service coordinators, who generally must have at least a bachelor’s degree in a human services-related field of study, unless they meet specific requirements in addition to having a high school diploma. Expanding the hiring qualifications for service coordinators will give LIDDAs an increased pool of skilled applicants, who may not have advanced degrees but are qualified to monitor services for people with intellectual and developmental disabilities based on previous unpaid or paid experiences. Expanding qualification requirements could have long-term positive effects for a vulnerable population that relies on LIDDA service coordinators to assist them in securing the services they need and achieving their desired outcomes and best quality of life.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §331.17 updates rule language to reflect the change in terminology from “Mental Retardation Authority” to LIDDA.
The proposed amendment to §331.17(b) expands minimum service coordinator qualifications by removing the field of study requirement for a service coordinator with a bachelor’s degree and adding an associate degree in a human services-related field. The amendment also changes the hiring qualifications for a service coordinator with a high school diploma by allowing two years paid or unpaid experience with individuals with intellectual or developmental disabilities and removing additional requirements, such as completion of Partners in Policy Making training.

Amending 26 TAC §748.303 to add requirements concerning notification to parents and the Child Care Regulation (CCR) after moving or providing care at a location not on the operation’s permit.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER D. REPORTS AND RECORD KEEPING
26 TAC §748.303

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §748.303 in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement sections of statute that were amended by Senate Bill (S.B.) 225 and S.B. 863, 87th Texas Legislature, Regular Session, 2021.

S.B. 225, SECTIONS 5 and 9, amended Texas Human Resources Code (HRC) §42.048(e) and §42.048(e-3) to (1) delete the requirement that a license or certificate is automatically revoked when certain operations change location (although HRC §42.048 only explicitly applies to licensed operations, this provision also applies to certified operations by way of HRC §42.052(b)); (2) require the operation to inform HHSC Child Care Regulation (CCR) of the new location before moving there; and (3) allow the operation to operate at the new location after CCR approves the location as meeting all relevant requirements.

S.B. 225 took effect on September 1, 2021, and applies to the following operation types that may now change location without their license or certification being automatically revoked: (1) all school-age programs, regardless of when they operate; (2) before or after-school programs; (3) licensed child-care homes; (4) child-care centers; and 5) general residential operations (GROs).

S.B. 863 took effect on May 15, 2021, and amended HRC §42.048 to allow CCR to comply with a local or state order during a declared disaster (as described in Texas Government Code Chapter 418) by authorizing a licensed or certified residential child-care facility to temporarily (1) move to a new location not on the facility’s license application; or (2) provide care for one or more children at an additional location that is not stated in the facility’s license application.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.303 adds new subsection (e)(3) to require a GRO to notify CCR and parents as soon as possible, but no later than 24 hours after temporarily moving to or providing care at any location not noted on the operation’s permit, renumbers the rule accordingly, and adds a clarification in subsection (e)(11).

Adopted Rules Re:

New 26 TAC §266.101, §266.103, providing an overview of the Medicaid Hospice Program requirements.

CHAPTER 266. MEDICAID HOSPICE PROGRAM
SUBCHAPTER A. INTRODUCTION
26 TAC §266.101, §266.103

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts in the Texas Administrative Code (TAC), Title 26, Part 1, new Chapter 266, Medicaid Hospice Program, Subchapters A – C, comprised of §§266.101, 266.103, 266.201, 266.203, 266.205, 266.207, 266.209, 266.211, 266.213, 266.215, 266.217, 266.219, 266.221, 266.223, 266.225, 266.227, 266.301, 266.303, 266.305, 266.307, 266.309, and 266.311.

Sections 266.101, 266.203, 266.217, and 266.219 are adopted with changes to the proposed text as published in the March 18, 2022, issue of the Texas Register (47 TexReg 1428). These rules will be republished.

Sections 266.103, 266.201, 266.205, 266.207, 266.209, 266.211, 266.213, 266.215, 266.221, 266.223, 266.225, 266.227, 266.301, 266.303, 266.305, 266.307, 266.309, and 266.311 are adopted without changes to the proposed text as published in the March 18, 2022, issue of the Texas Register (47 TexReg 1428). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The purpose of the adoption is to update and relocate the Medicaid Hospice Program rules from 40 TAC Chapter 30 to 26 TAC Chapter 266 as part of the consolidation of HHSC’s rules in 26 TAC. The repeal of the rules in 40 TAC Chapter 30 is adopted elsewhere in this issue of the Texas Register.

The adoption of new 26 TAC Chapter 266 will make HHSC’s Medicaid Hospice Program rules consistent with the federal Medicare hospice regulations, add definitions used in the chapter, include details of utilization review policy requirements, such as describing what the individualized plan of care must include, types of required documentation that a hospice must maintain, and specifics regarding the certification of terminal illness, and update standards to protect the health and safety of individuals receiving hospice care.

The adopted new rules incorporate the federal rate changes in Title 42, Code of Federal Regulations (CFR), Chapter IV, Part 418, Subpart G, Payment for Hospice Care, that HHSC implemented on January 1, 2016. These changes allow providers to be paid at a higher rate during the first 60 days of routine home care and during the final seven days. Additionally, the new rules create an annual aggregate cap and align it with the federal fiscal year. The proposed new rules also align hospice election periods to those in 42 CFR, Chapter IV, Part 418, Subpart B, §418.21 Duration of hospice care coverage – Election periods.

The new rules also include hospice documentation requirements, recoupment of payments, and the option to request an informal review of and appeal proposed recoupment.

The new rules also update agency names, replace references to the “initial period of care” with references to the “initial election period,” and replace references to “recipient” or “beneficiary” with references to “individual.”

New 26 TAC §§266.201, 266.203, 266.205, 266.207, 266.209, 266.211, 266.213, 266.215, 266.217, 266.219, 266.221, 266.223, 266.225, 266.227, describing utilization review policy requirements for the Medicaid Hospice Program.

CHAPTER 266. MEDICAID HOSPICE PROGRAM
SUBCHAPTER B. UTILIZATION REVIEW
26 TAC §§266.201, 266.203, 266.205, 266.207, 266.209, 266.211, 266.213, 266.215, 266.217, 266.219, 266.221, 266.223, 266.225, 266.227

OVERVIEW

BACKGROUND AND JUSTIFICATION

The new rules also include hospice documentation requirements, recoupment of payments, and the option to request an informal review of and appeal proposed recoupment.

New 26 TAC §§266.301, 266.303, 266.305, 266.307, 266.309, 266.311, detailing contracting requirements under the Medicaid Hospice Program.

CHAPTER 266. MEDICAID HOSPICE PROGRAM
SUBCHAPTER C. CONTRACTING REQUIREMENTS
26 TAC §§266.301, 266.303, 266.305, 266.307, 266.309, 266.311

OVERVIEW

BACKGROUND AND JUSTIFICATION

The new rules also include hospice documentation requirements, recoupment of payments, and the option to request an informal review of and appeal proposed recoupment.

Amending 26 TAC §745.115, §745.139 to update licensing of governmental entities and combination of exempt and regulated programs.

CHAPTER 745. LICENSING
SUBCHAPTER C. OPERATIONS THAT ARE EXEMPT FROM REGULATION
26 TAC §745.115, §745.139

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts 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 Texas Administrative Code, Title 26, Part 1, Chapter 745, Licensing.

Amended §§745.115, 745.139, and 745.8605 are adopted without changes to the proposed text as published in the May 20, 2022, issue of the Texas Register (47 TexReg 3030). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The purpose of the rulemaking is to support Governor Abbott’s May 31, 2021, proclamation declaring a state of disaster in certain Texas counties and for affected 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 Texas Human Resources Code and all other relevant laws to the extent necessary for HHSC to comply with this direction. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires the rules to be adopted with an expedited effective date.

In July 2021 and January 2022, HHSC adopted emergency rules relating to operations that are exempt from licensure and regulation by HHSC. 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 provided 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 outlined the enforcement actions HHSC may take if a GRO provides care or shelter to an unlawfully present individual.

The present rulemaking substantially adapts the content of the emergency rules into standard rules. Accordingly, the amended rules 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; (2) clarify that an existing rule that allows HHSC Child Care Regulation (CCR) to regulate an exempt program, when combined with a regulated program does not apply to the exempt operations in the proposed new rules; and (3) incorporate the enforcement components in the emergency rule into CCR’s existing enforcement framework.

Amending 26 TAC §745.8605 to update licensing enforcement actions.

CHAPTER 745. LICENSING
SUBCHAPTER L. ENFORCEMENT ACTIONS
26 TAC §745.8605

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §748.7 to outline how new regulations apply to family residential centers.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER A. PURPOSE AND SCOPE
26 TAC §748.7

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts 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 Texas Administrative Code, Title 26, Part 1, Chapter 748, Minimum Standards for General Residential Operations.

Amended §748.7 and new §§748.81, 748.83, and 748.85 are adopted without changes to the proposed text as published in the May 20, 2022, issue of the Texas Register (47 TexReg 3033). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

In July 2021 and January 2022, HHSC adopted emergency rules 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 provided 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 outlined the enforcement actions HHSC may take if a GRO provides care or shelter to an unlawfully present individual.

The present rulemaking substantially adapts the content of the emergency rules into standard rules. Accordingly, the new rules and amendment reflect the intent and content of the emergency rule but have been updated to (1) clarify that rules relating to family residential centers are only applicable when a GRO may provide care to children who are unlawfully present in the United States and in the custody of the federal government; and (2) remove the definition for the term General Residential Operation because the term is defined elsewhere in Chapter 748.

In Addition Re:

Public Notice: Correction – 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.

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

Department of Aging and Disability Services

Adopted Rules Re:

Repealing 40 TAC §30.2, §30.4 to allow HHSC to provide new rules governing the Medicaid Hospice Program.

CHAPTER 30. MEDICAID HOSPICE PROGRAM
SUBCHAPTER A. INTRODUCTION
40 TAC §30.2, §30.4

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC adopts the repeal of rules in Texas Administrative Code (TAC) Title 40, Part 1, Chapter 30, concerning Medicaid Hospice Program consisting of §§30.2, 30.4, 30.10, 30.12, 30.14, 30.16, 30.18, 30.20, 30.30, 30.34, 30.36, 30.40, 30.50, 30.52, 30.54, 30.60, 30.62, 30.90, 30.92, and 30.100.