Texas Register December 9, 2022, Volume: 47 Number: 49

Texas Register Table of Contents

1 Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed two individuals to the Statewide Health Coordinating Council.
  - 1.0.2 Proclamation 41-3941
    - 1.0.2.1 The Governor issued Proclamation 41-3941 in response to the ongoing COVID-19 pandemic.
2 Texas Health and Human Services Commission
3 Texas Board of Physical Therapy Examiners
- - 3.0.1 Proposed Rules Re:
    - 3.0.1.1 Amending 22 TAC §322.4, to add failing to respond to agency correspondence and failing to complete the requirements of an agreed order to the list of actions considered detrimental practice.
4 Texas Department of State Health Services
- - 4.0.1 Proposed Rules Re:
  - 4.0.2 In Addition Re:
    - 4.0.2.1 Designation of a Practice Serving a Medically Underserved Population
    - 4.0.2.2 Guidelines for the Care of Students with Food Allergies
5 Department of Aging and Disability Services
- - 5.0.1 Adopted Rules Re:
    - 5.0.1.1 Repealing 40 TAC §§3.501-3.506, 3.508, 3.509 to update internal operating procedures for the death of an individual.

Governor

Appointments Re:

The Governor appointed two individuals to the Statewide Health Coordinating Council.

Appointments for November 29, 2022

Appointed to the Statewide Health Coordinating Council for a term to expire August 31, 2025:

Quincy C. Moore, III, Ph.D. of Cypress, Texas (replacing Doris J. Jackson, D.H.A. who resigned).
Cheletta L. Watkins, M.D. of Forney, Texas (replacing Bharath Thankavel, M.D. of Dallas who resigned).

Proclamation 41-3941

The Governor issued Proclamation 41-3941 in response to the ongoing COVID-19 pandemic.

OVERVIEW

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

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.

Texas Health and Human Services Commission

Emergency Rules Re:

Renewing 26 TAC §500.4 to permit a licensed hospital to participate in the Centers for Medicare & Medicaid Services (CMS) Acute Hospital Care at Home Program.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER A. HOSPITALS
26 TAC §500.4

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency rule §500.4 for a 60-day period. The text of the emergency rule was originally published in the August 5, 2022, issue of the Texas Register (47 Tex Reg 4605).

BACKGROUND AND JUSTIFICATION

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. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for Participating in the Centers for Medicare and Medicaid Services Acute Hospital Care at Home Program During the COVID-19 Pandemic.

To protect hospital patients and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to temporarily permit a currently licensed hospital to participate in the CMS hospitals at home program to expand hospital capacity in response to the COVID-19 pandemic.

Proposed Rules Re:

Amending 1 TAC §§366.403, 366.405, 366.409, to update definitions, eligibility requirements, and the application process for Medicaid for Breast and Cervical Cancer (MBCC).

CHAPTER 366. MEDICAID ELIGIBILITY FOR WOMEN, CHILDREN, YOUTH, AND NEEDY FAMILIES
SUBCHAPTER D. MEDICAID FOR BREAST AND CERVICAL CANCER
1 TAC §§366.403, 366.405, 366.409

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §366.403, concerning Definitions; §366.405, concerning Eligible Group; and §366.409, concerning Application Requirements and Processing.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to update rules related to the application process for Medicaid for Breast and Cervical Cancer (MBCC). The proposed amendments include updates to reference current statute, program titles, and clarification of the role of HHSC. The proposed amendments are also necessary to reflect the transition of authority from the Texas Department of State Health Services (DSHS) to HHSC and other non-substantive administrative updates.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §366.403, Definitions, replaces the definition of DSHS with a definition of HHSC. This amendment also makes administrative edits to spell out acronyms for associated program titles.
The proposed amendment to §366.405, Eligible Group, updates a statutory reference, replaces a reference to DSHS with a reference to HHSC, and clarifies the title of the Breast and Cervical Cancer Services (BCCS) Program.
The proposed amendment to §366.409, Application Requirements and Processing, clarifies which providers can make presumptive eligibility determinations and process applications, and updates the timeframe within which HHSC can make an eligibility determination. This proposed amendment also makes administrative edits to update a reference to DSHS.

Amending 1 TAC §393.3, to update informal dispute resolution requirements for Texas Home Living and Community-Based Services providers.

CHAPTER 393. INFORMAL DISPUTE RESOLUTION AND INFORMAL RECONSIDERATION
1 TAC §393.3

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to 1 Texas Administrative Code (TAC) §393.3, concerning Informal Dispute Resolution for Texas Home Living (TxHmL) and Home and Community-Based Service (HCS) providers.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to ensure the Informal Dispute Resolution (IDR) rule aligns with current regulatory processes. House Bill 2590, 85th Legislature, Regular Session, 2017 required HHSC to develop and contract IDR services for HCS and TxHmL providers. Section 393.3 was originally adopted on February 15, 2021, and reflected the regulatory and IDR processes at the time of adoption. Since adoption, regulatory processes were modified for HCS and TxHmL providers and some of the changes impacted the IDR process. Amending the rule will ensure the rule aligns with current practices and terminology.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §393.3(b) removes the requirement for providers to submit their final report along with their request for IDR, as this is no longer necessary.
Subsection 393.3(j) is revised to remove the requirement for the State survey agency to submit the report log ID and contract number to IDR, as these are no longer necessary to identify the provider requesting the IDR.
Other subsections of the rule are amended to reflect changes in terminology since the rule was originally adopted. Specifically, “citation” is replaced with “violation” and “final report” is replaced with “official Statement of Licensing Violations.” Edits are also made to update references for consistency and clarity.

New 26 TAC §§307.201, 307.203, 307.205, 307.207, 307.209, 307.211, 307.213, 307.215, 307.217, 307.219, 307.221, 307.223, concerning Children’s Mental Health–Residential Treatment Center Project.

CHAPTER 307. BEHAVIORAL HEALTH PROGRAMS
SUBCHAPTER E. CHILDREN’S MENTAL HEALTH–RESIDENTIAL TREATMENT CENTER PROJECT
26 TAC §§307.201, 307.203, 307.205, 307.207, 307.209, 307.211, 307.213, 307.215, 307.217, 307.219, 307.221, 307.223

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes Chapter 307, Subchapter E, Children’s Mental Health–Residential Treatment Center Project.

The new subchapter is comprised of §307.201, concerning Purpose; §307.203, concerning Application; §307.205, concerning Definitions; §307.207, concerning Eligibility Criteria to Participate in the RTC Project; §307.209, concerning Referral Process; §307.211, concerning Interest List Management; §307.213, concerning Assessing Eligibility; §307.215, concerning Notification and Appeal Process; §307.217, concerning Application Packet; §307.219, concerning Local Mental Health Authority and Local Behavioral Health Authority Requirements; §307.221, concerning Residential Treatment Center Contractor Requirements; and §307.223, concerning Discharge Plan.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement the relinquishment avoidance program, in accordance with Texas Family Code §262.351 and §262.353, which provides beds in residential treatment center (RTC) facilities to prevent the relinquishment of parental conservatorship to the Texas Department of Family and Protective Services (DFPS) solely to obtain mental health services for a child with a serious emotional disturbance. The new rules govern the use of relinquishment prevention beds through the RTC Project and the provision of RTC Project services necessary to address the interrelated roles and responsibilities of HHSC, DFPS, local mental health authorities (LMHAs), local behavioral health authorities (LBHAs), and contracted RTCs.

SECTION-BY-SECTION SUMMARY

Proposed new §307.201 describes the purpose of the subchapter.
Proposed new §307.203 establishes rule applicability to residential treatment center providers that contract with HHSC to provide RTC Project services; LMHAs and LBHAs that have RTC Project administrative responsibilities; and a child and their legally authorized representative who is an applicant or recipient of services under the RTC Project.
Proposed new §307.205 provides definitions for terminology used in the subchapter.
Proposed new §307.207 establishes eligibility criteria for a child to participate in the RTC Project.
Proposed new §307.209 describes the RTC Project referral process.
Proposed new §307.211 describes management of the RTC Project interest list.
Proposed new §307.213 describes assessing a child’s eligibility for the RTC Project.
Proposed new §307.215 describes the notification and appeal process if the child’s name is removed from the interest list or the child is determined ineligible for RTC Project services.
Proposed new §307.217 describes the process for an application packet submittal.
Proposed new §307.219 describes LMHA and LBHA requirements.
Proposed new §307.221 describes RTC contractor requirements.
Proposed new §307.223 describes discharge plan requirements.

Amending 26 TAC §§371.1, 371.3, 371.5, 371.7, 371.9, 371.11, 371.13, 371.15, to update rules related to program services for the Breast and Cervical Cancer Services (BCCS) program.

CHAPTER 371. BREAST AND CERVICAL CANCER SERVICES
26 TAC §§371.1, 371.3, 371.5, 371.7, 371.9, 371.11, 371.13, 371.15

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §371.1, concerning Purpose; §371.3, concerning Federal Authorization and Requirements; §371.5, concerning Providers; §371.7, concerning Client Eligibility Requirements; §371.9, concerning Screening Requirements; §371.11, concerning Follow-up and Case Management Requirements; §371.13, concerning Payment for Services; and §371.15, concerning Client Fees.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to update rules related to program services for the Breast and Cervical Cancer Services (BCCS) program. The proposed amendments include updates to reflect current clinical recommendations, statutes, and program titles, and to clarify the roles of BCCS contractors and HHSC staff. The proposed amendments are also necessary to reflect the transition of authority from the Texas Department of State Health Services (DSHS) to HHSC and other non-substantive administrative updates.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §371.1, Purpose, updates the description of the BCCS program and removes a reference to DSHS and adds HHSC.
The proposed amendment to §371.3, Federal Authorization and Requirements, updates a statutory reference and a reference to DSHS.
The proposed amendment to §371.5, Providers, clarifies the requirements for health care providers to participate in the BCCS program, including removing out-of-date references to the Texas Women’s Health Program and DSHS.
The proposed amendment to §371.7, Client Eligibility Requirements, clarifies the eligibility requirements for participants in the BCCS program.
The proposed amendment to §371.9, Screening Requirements, simplifies client screening requirements to reference current clinical recommendations and the BCCS policy manual.
The proposed amendment to §371.11, Follow-up and Case Management Requirements, makes a minor administrative edit to clarify the title of the BCCS policy manual.
The proposed amendment to §371.13, Payment for Services, clarifies payment procedures and updates a reference to DSHS and adds HHSC.
The proposed amendment to §371.15, Client Fees, makes a minor administrative edit to clarify the title of the BCCS policy manual.

Amending 26 TAC §550.5, to add a new definition for the term “premises” and update certain nursing degree requirements for Prescribed Pediatric Extended Care Centers (PPECC).

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER A. PURPOSE, SCOPE, LIMITATIONS, COMPLIANCE, AND DEFINITIONS
26 TAC §550.5

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 550, Licensing Standards for Prescribed Pediatric Extended Care Centers, amendments to §550.5, relating to Definitions; §550.309, relating to Nursing Director and Alternate Nursing Director Qualifications and Conditions; §550.1102 relating to Transportation and Safety Conditions; and §550.1208, relating to Food Preparation.

The proposed amendment to §550.5 adds a new definition for “premises” to clarify that a PPECC includes the center, any lots on which the center is located, any outside ground areas, play areas, and the parking lot; makes minor edits to improve readability; and renumbers the paragraphs accordingly.

BACKGROUND AND JUSTIFICATION

The proposal is necessary to update licensing standards for Prescribed Pediatric Extended Care Centers (PPECC). The proposed amendments add a definition for the term “premises” and update nursing degree requirements for the nursing director and alternate nursing director and staffing ratio requirements. The proposed amendments also update outdated references to Texas Food Establishment rules, correct rule references that became outdated as a result of the administrative transfer of rules from 40 TAC Chapter 15 to 26 TAC Chapter 550, and reflect the transfer of functions from the Texas Department of Aging and Disability Services to HHSC.

Amending 26 TAC §550.309, to remove the baccalaureate degree requirement for the nursing director and alternate nursing director for Prescribed Pediatric Extended Care Centers (PPECC).

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER C. GENERAL PROVISIONS
26 TAC §550.309

OVERVIEW

The proposed amendment to §55.309(b) removes the baccalaureate degree in the nursing requirement for the nursing director and alternate nursing director. The proposed amendment also removes the requirement that prevents the nursing director from being included in the center’s staffing ratio when the actual census is four or more minors and makes a minor edit to improve readability.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §550.1102, to remove the requirement for a center nurse to accompany all minors during transport and add language that instead allows center staff to determine the necessity for a nurse during transport according to a minor’s plan of care.

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER D. TRANSPORTATION
26 TAC §550.1102

OVERVIEW

The proposed amendment to §550.1102 removes the requirement for a center nurse to accompany all minors during transport and adds language that will allow center staff to determine the necessity for a nurse during transport according to a minor’s plan of care and makes a minor edit to improve readability.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §550.1208, to clarify that a Prescribed Pediatric Extended Care Center with a kitchen must meet rules related to retail food establishments.

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER E. BUILDING REQUIREMENTS
26 TAC §550.1208

OVERVIEW

The proposed amendment to §550.1208 removes outdated references to the Texas Food Establishment rules, adds language to clarify that a center with a kitchen must meet rules related to retail food establishments, and makes a minor edit to improve readability.

BACKGROUND AND JUSTIFICATION

Adopted Rules Re:

Amending 26 TAC §748.43 to add new terms and definitions for general residential operations.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER B. DEFINITIONS AND SERVICES
26 TAC §748.43

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§748.43, 748.4553, 748.4659 and new §748.3319 and §748.3321 in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations.

Amendments to §748.4553 and §748.4659, and new §748.3319 and §748.3321 are adopted without changes to the proposed text, as published in the August 19, 2022, issue of the Texas Register (47 TexReg 4950). These rules will not be republished.

Amendments to §748.43 are adopted with changes to the proposed text as published in the August 19, 2022, issue of the Texas Register (47 TexReg 4950). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to implement sections of statute that were added or amended by SECTIONS 18, 19, and 20 of House Bill (H.B.) 1540, 87th Texas Legislature, Regular Session, 2021.

H.B. 1540, SECTION 18, amended Texas Human Resources Code (HRC) §42.002 to add the new term “grounds” and its definition.

H.B. 1540, SECTION 19, made the following changes to HRC §42.042: (1) added subsection (e)(9), which requires HHSC Child Care Regulation (CCR) to promulgate minimum standards that ensure a child’s health, safety, and welfare are adequately protected on the “grounds” of a child-care facility or registered family home; (2) amended subsection (g) to allow CCR to recognize and treat differently the “grounds appurtenant to” child-care facilities, registered family homes, listed family homes, child-placing agencies, and foster homes when promulgating minimum standards for each operation type; and (3) amended subsection (g-2) to require CCR to consider precautions required for a general residential operation (GRO) to protect trafficking victims and the vulnerability of the victims on the “grounds” of a residential treatment center (RTC) when adopting minimum standards.

H.B. 1540, SECTION 20, added HRC §42.068, which requires (1) CCR to develop “no trespassing” notices that meet specific criteria and to provide them at no charge to each RTC; and (2) each RTC to post the “no trespassing” notices at specific locations on the grounds of the operation.

CCR conducted two work group meetings: one on November 15, 2021, which included 32 invited participants with day care experience, and one on November 18, 2021, which included 12 invited participants with residential care experience. The work groups met to discuss rule changes needed to implement the legislation and provided feedback on the drafted rules.

Amending 26 TAC §748.3319 and §748.3321 to require no trespassing signs for general residential operations.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER P. PHYSICAL SITE
26 TAC §748.3319, §748.3321

OVERVIEW

Amendments to §748.43 are adopted with changes to the proposed text as published in the August 19, 2022, issue of the Texas Register (47 TexReg 4950). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to implement sections of statute that were added or amended by SECTIONS 18, 19, and 20 of House Bill (H.B.) 1540, 87th Texas Legislature, Regular Session, 2021.

H.B. 1540, SECTION 18, amended Texas Human Resources Code (HRC) §42.002 to add the new term “grounds” and its definition.

Amending 26 TAC §748.4553 to clarify required written policies for general residential operations for trafficking victims.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER V. ADDITIONAL REQUIREMENTS FOR OPERATIONS THAT PROVIDE TRAFFICKING VICTIM SERVICES
26 TAC §748.4553

OVERVIEW

Amendments to §748.43 are adopted with changes to the proposed text as published in the August 19, 2022, issue of the Texas Register (47 TexReg 4950). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to implement sections of statute that were added or amended by SECTIONS 18, 19, and 20 of House Bill (H.B.) 1540, 87th Texas Legislature, Regular Session, 2021.

H.B. 1540, SECTION 18, amended Texas Human Resources Code (HRC) §42.002 to add the new term “grounds” and its definition.

Amending 26 TAC §748.4659 to describe required annual training for general residential operations regarding trafficking victim services.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER V. ADDITIONAL REQUIREMENTS FOR OPERATIONS THAT PROVIDE TRAFFICKING VICTIM SERVICES
26 TAC §748.4659

OVERVIEW

Amendments to §748.43 are adopted with changes to the proposed text as published in the August 19, 2022, issue of the Texas Register (47 TexReg 4950). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to implement sections of statute that were added or amended by SECTIONS 18, 19, and 20 of House Bill (H.B.) 1540, 87th Texas Legislature, Regular Session, 2021.

H.B. 1540, SECTION 18, amended Texas Human Resources Code (HRC) §42.002 to add the new term “grounds” and its definition.

New 26 TAC §967.1, describing the death reporting timeline for state supported living centers (SSLCs).

CHAPTER 967. STATE SUPPORTED LIVING CENTER INDEPENDENT MORTALITY REVIEW
26 TAC §967.1

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §967.1, concerning Independent Mortality Review.

Section 967.1 is adopted without changes to the proposed text as published in the August 5, 2022, issue of the Texas Register (47 TexReg 4661). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The new section is necessary to comply with Texas Government Code §531.851(d), which requires HHSC to identify the manner in which the state supported living centers (SSLCs) must report the death of an individual served to the independent mortality review organization contracted pursuant to §531.851(c) to conduct an independent mortality review. Additionally, this adoption places HHSC rules in Title 26 and the repeal of Texas Administrative Code (TAC) Title 40, Chapter 3, Subchapter E, concerning Death of an Individual, is being simultaneously adopted in this issue of the Texas Register.

In Addition Re:

Public Notice – Texas State Plan for Medical Assistance Amendment effective January 1, 2023

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendments will be effective January 1, 2023.

Texas Board of Physical Therapy Examiners

Proposed Rules Re:

Amending 22 TAC §322.4, to add failing to respond to agency correspondence and failing to complete the requirements of an agreed order to the list of actions considered detrimental practice.

CHAPTER 322. PRACTICE
22 TAC §322.4

OVERVIEW

The Texas Board of Physical Therapy Examiners proposes amending §322.4, Practicing in a Manner Detrimental to the Public Health and Welfare relating to detrimental practice actions.

The amendment is proposed in order to add failing to respond to agency correspondence and failing to complete the requirements of an agreed order to the list of actions considered detrimental practice.

Texas Department of State Health Services

Proposed Rules Re:

Amending 25 TAC §91.11, §91.12 to update the DSHS Texas Cancer Registry email address.

CHAPTER 91. CANCER
SUBCHAPTER A. CANCER REGISTRY
25 TAC §91.11, §91.12

OVERVIEW

The Executive Commissioner of the Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes amendments to §91.11, concerning Requests for Statistical Cancer Data; and §91.12, concerning Requests and Release of Confidential Cancer Data.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to amend the Texas Cancer Registry data request rules that will support compliance with federal requirements and allow greater flexibility for researchers. 45 Code of Federal Regulations (CFR) 46.114 (updated in 2018) requires research institutions to use a single Institutional Review Board (IRB) for federally supported research involving more than one institution. However, current §91.12 language requires researchers to obtain approval from the DSHS IRB, regardless of whether the project involves multiple institutions, resulting in researchers needing multiple IRB approvals for certain projects.

Most state cancer registries participate in the federal National Cancer Institute’s Virtual Pooled Registry (VPR) IRB, a service which allows researchers to use a single IRB to request cancer registry data from multiple institutions. The proposed amendment to §91.12 will allow DSHS to designate the VPR IRB as an approved alternative IRB for researchers to use when requesting Texas Cancer Registry data, thus allowing researchers to submit their study and obtain approval from either the VPR IRB or the DSHS IRB. Researchers whose studies do not meet the requirements for submission to the VPR IRB would still be required to submit their study for review and approval through the DSHS IRB.

The proposal will allow the state to remain eligible for federal grants and maintain compliance with Texas Health and Safety Code, Chapter 82 (Texas Cancer Incidence Reporting Act).

SECTION-BY-SECTION SUMMARY

The proposed amendment to §91.11 updates the DSHS Texas Cancer Registry email address and makes other clarifying, non-substantive changes.
The proposed amendment to §91.12 changes references from the “department’s IRB” or “IRB” to the “department or its designated IRB.” This change will allow DSHS to designate (through an IRB authorization contract) the VPR IRB as an acceptable alternative to the DSHS IRB. The proposed amendment also updates the DSHS Texas Cancer Registry email address.

Amending 25 TAC §§101.1 – 101.4, 101.7, 101.10, to update the process requiring tobacco manufacturers to submit annual tobacco ingredient reports (annual reports) to DSHS on an annual basis.

CHAPTER 101. TOBACCO
25 TAC §§101.1 – 101.4, 101.7, 101.10

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes amendments to Texas Administrative Code §101.1, concerning Purpose; §101.2, concerning Definitions; §101.3, concerning General Requirements for Annual Reports by Manufacturers; §101.4, concerning Ingredient Reporting Requirements; §101.7, concerning Security of Report Information, and §101.10, concerning Public Information; and the repeal of §101.5, concerning Cigarette Nicotine Yield Rating Reporting Requirements; and §101.6, concerning Tobacco Products–Excluding Cigars, Nicotine Reporting Requirements.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed repeal of §101.5 and §101.6 is necessary to implement Senate Bill (S.B.) 970, 87th Legislature, Regular Session, 2021. S.B. 970 repealed Texas Health and Safety Code §161.353 that removed the requirement for tobacco manufacturers to report nicotine yield ratings to DSHS. The proposed amendments to §§101.2, 101.3, and 101.7 remove definitions and requirements no longer needed after the repeal of Texas Health and Safety Code §161.353.

DSHS is also amending §§101.1 – 101.4, 101.7, and 101.10 to update the process requiring tobacco manufacturers to submit annual tobacco ingredient reports (annual reports) to DSHS on an annual basis. Needed updates were identified through a rule review process conducted in accordance with Texas Government Code §2001.039. The proposed amendments modernize and simplify the process for receiving and storing annual reports.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §101.1 corrects the reference to Subchapter P in Texas Health and Safety Code, Chapter 161.
The proposed amendment to §101.2 removes the definitions of “chewing or snuff tobacco nicotine yield rating” and “cigarette nicotine yield rating,” as no longer applicable to this chapter. Other definitions in this section are updated to bring in line with current statutory definitions.
The proposed amendment to §101.3 removes requirements concerning the nicotine yield rating of cigarette or tobacco products that are no longer applicable due to the repeal of Texas Health and Safety Code §161.353. Additional changes include updating DSHS contact information and allowing annual reports to be submitted via email.
The proposed amendment to §101.4 removes the tobacco ingredient reporting form in the section and updates and locates the form on the DSHS website.
The proposed amendment to §101.7 removes requirements that are no longer applicable due to the repeal of Texas Health and Safety Code §161.353. The proposed amendment allows the tobacco program manager to apply DSHS record retention policy when storing annual reports.
The proposed amendment to §101.10 aligns the rule language with statutory language and simplifies the text.

Repealing 25 TAC §101.5, §101.6, as they relate to Tobacco, because the sections are no longer necessary following the repeal of Texas Health and Safety Code §161.353.

CHAPTER 101. TOBACCO
25 TAC §101.5, §101.6

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed repeal of §101.5 and §101.6 deletes the rules, as they are no longer necessary due to the repeal of Texas Health and Safety Code §161.353.

In Addition Re:

Designation of a Practice Serving a Medically Underserved Population

OVERVIEW

The Texas Department of State Health Services (Department) is required under Texas Occupations Code §157.051 to designate practices serving a medically underserved population. In addition, the Department is required to publish notice of such designations in the Texas Register and to provide an opportunity for public comment on the designations.

Accordingly, the Department has proposed designating the following as practices serving medically underserved populations:

MD Kids Pediatrics, 9139 Westover Hills Boulevard, Suite 101, San Antonio, Texas 78251; and

MD Kids Pediatrics, 277 Buddy Ganem, Suite A, Portland, Texas 78374.

Guidelines for the Care of Students with Food Allergies

OVERVIEW

Texas Education Code, Section 38.0151 requires the board of trustees of each school district and the governing body, or appropriate officers of open-enrollment charter schools, adopt and administer a policy for the care of students with diagnosed food allergies at risk for anaphylaxis. The policy must follow guidelines developed by the Commissioner of the Texas Department of State Health Services (DSHS) in consultation with the Food Allergy Ad Hoc Committee. DSHS is publishing a draft of the Guidelines for the Care of Students with Food Allergies in the Texas Register to provide an opportunity for public comment.

Department of Aging and Disability Services

Adopted Rules Re:

Repealing 40 TAC §§3.501-3.506, 3.508, 3.509 to update internal operating procedures for the death of an individual.

CHAPTER 3. RESPONSIBILITIES OF STATE FACILITIES
SUBCHAPTER E. DEATH OF AN INDIVIDUAL
40 TAC §§3.501 – 3.506, 3.508, 3.509

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 §3.501, concerning Discovery, §3.502, concerning Reporting and Notification, §3.503, concerning Medical Certification of Death and Autopsies, §3.504, concerning Disposition, §3.505, concerning Clinical Death Review, §3.506, concerning Administrative Death Review, §3.508, concerning State Office Mortality Review, and §3.509, concerning Independent Mortality Review in Title 40, Part 1, Chapter 3, Subchapter E, concerning Death of an Individual.

Sections 3.501 – 3.506, 3.508, and 3.509 are adopted without changes to the proposed text as published in the August 5, 2022, issue of the Texas Register (47 TexReg 4666). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The adoption is necessary to facilitate updates to internal operating procedures for which there are no statutory requirements for adoption in the Texas Administrative Code (TAC) by repealing the rules in Title 40, Chapter 3, Subchapter E, concerning Death of an Individual. While the state supported living centers (SSLCs) will continue to conduct both facility-level and state office-level reviews of the deaths of individuals served, the adoption of these procedures in the TAC impedes the SSLCs’ ability to make necessary and timely updates to the procedures. This proposal also complies with Texas Government Code §531.851(d), which requires HHSC to identify the manner in which the SSLCs must report the death of an individual served to the independent mortality review organization contracted pursuant to Section 531.851(c) to conduct an independent mortality review. This independent mortality review is in addition to the reviews conducted at the facility and state office levels. This adoption repeals HHSC rules in Title 40 and a new rule in 26 TAC 967, concerning State Supported Living Center Independent Mortality Review, is simultaneously adopted in this issue of the Texas Register.