Texas Register January 13, 2023 Volume: 48 Number: 2

Texas Register Table of Contents

1 Texas Department of State Health Services
- - 1.0.1 Proposed Rules Re:
    - 1.0.1.1 Amending 25 TAC §§131.181 – 131.191, to revise definitions and clarify hospital level of care designations for neonatal and maternal care programs.
2 Texas Department of Insurance
- - 2.0.1 Proposed Rules Re:
3 Texas Health and Human Services Commission
- - 3.0.1 In Addition Re:
    - 3.0.1.1 Notice of Public Hearing on Proposed Updates to Medicaid Payment Rates
    - 3.0.1.2 Statewide Transition Plan for Medicaid Home and Community Based Services Settings

Texas Department of State Health Services

Proposed Rules Re:

Amending 25 TAC §§131.181 – 131.191, to revise definitions and clarify hospital level of care designations for neonatal and maternal care programs.

CHAPTER 133. HOSPITAL LICENSING
SUBCHAPTER J. HOSPITAL LEVEL OF CARE DESIGNATIONS FOR NEONATAL [AND MATERNAL] CARE
25 TAC §§131.181 – 131.191

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 §133.181, concerning Purpose; §133.182, concerning Definitions; §133.183, concerning General Requirements; §133.184, concerning the Designation Process; §133.185, concerning Program Requirements; §133.186, concerning Neonatal Designation Level I; §133.187, concerning Neonatal Designation Level II; §133.188, concerning Neonatal Designation Level III; §133.189, concerning Neonatal Designation Level IV; §133.190, concerning the Survey Team; and new §133.191, concerning the Perinatal Care Regions (PCRs).

BACKGROUND AND JUSTIFICATION

The purpose of this proposal is to update the content and processes with the advances and practices since these rules were adopted in 2016. Senate Bill (S.B.) 749, 86th Legislature, Regular Session, 2019, amended the Texas Health and Safety Code, Chapter 241.

In addition, the Perinatal Advisory Council (PAC) provided DSHS with rule language recommendations designed to clarify specific subsections of the rules. The recommendations include the use of prearranged consultative agreements using telemedicine technology, and consideration of a waiver agreement for facilities that cannot meet a specific designation requirement. The recommendations further define the process for the three-person appeal panel, pediatric echocardiography with pediatric cardiology interpretation and consultation to be completed in a time period consistent with standards of professional practice, and include national accredited organizations providing resuscitation courses.

DSHS integrated the subcommittee’s recommended language in the proposed rules. DSHS presented the rule changes to the PAC during their February 7, 2022, meeting. The PAC formed a workgroup to collaborate with DSHS staff to review all feedback received during the informal comment period which ended on February 28, 2022. The PAC workgroup met with DSHS on March 2, 2022, to consider all comments and determine the most appropriate language to ensure the health and safety of neonatal patients and prevent unnecessary burden for the facilities providing neonatal care.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §133.181 adds the word “Texas” for clarity in the Texas Health and Safety Code.
The proposed amendment to §133.182, concerning Definitions, revises definitions for “attestation,” “birth weight,” “CAP,” “department,” “designation,” “EMS,” “gestational age,” “high-risk infant,” “immediately,” “infant,” “maternal,” “neonate,” “NRP,” “PCR,” “POC,” “QAPI Program,” “RAC,” “TSA,” and “urgent.” New definitions include “available,” “contingent designation,” “contingent probationary designation,” “focused survey,” “inter-facility transport,” “Neonatal Program Oversight,” “on-site,” “telehealth service,” and “telemedicine medical service.” The definitions “commission,” “Executive Commissioner,” “immediate supervision,” “office,” and “postpartum” were removed as these definitions are no longer necessary. The revised and new definitions provide clarity to the rule language and ensure consistency in interpretation of the rules.
The proposed amendment to §133.183, concerning General Requirements, clarifies language and the expectations for facilities seeking neonatal designation. Subsection (d) clarifies that DSHS determines requirements for the levels of neonatal designation. Subsection (e) removes PCRs from this subsection and is located in new §133.191. Subsection (f)(3)(E) clarifies outreach education language for the Level III Neonatal facilities. Subsection (f)(4)(E) clarifies outreach education language for the Level IV Neonatal facilities. Subsection (g)(5) defines the expectations for access to the QAPI (Quality Assessment and Performance Improvement) Plan documentation by DSHS and surveyors during a neonatal designation site review. Subsection (h)(1) – (2) outlines the surveyor conflict of interest and expectations. Subsection (i) defines that DSHS may appoint an observer to accompany the survey team. Subsection (j) defines that the surveyors’ role is to validate the hospital’s processes to meet the designation requirements.

The proposed amendment to §133.184, concerning the Designation Process, clarifies designation and process language and expectations for facilities seeking neonatal designation. Subsection (a)(2)(B) defines the process required to complete the attestation and self-survey report for hospitals seeking Level I designation. This section also defines that Level II, Level III, and Level IV facilities must submit the completed neonatal survey report documenting that the designation requirements are met and that medical record reviews are in their designation application. Subsection (a)(1)(C) outlines the expectations for developing the “Plan of Correction” if designation requirements are not met. Subsections (c) – (k) define the process for designating at a different level of care. Subsection (d) defines that the facility must submit the required documents described in subsection (a)(1) and (2) no later than 90 days before the facility’s current neonatal designation expiration date. Subsection (e) states that a facility has the right to withdraw its application for neonatal designation any time before being approved for designation by DSHS. Subsection (f) outlines that the facility’s neonatal designation will expire if the facility fails to provide a complete neonatal designation application renewal packet to DSHS. Subsection (k) defines the expectations of the site survey summary and that it is to be submitted to the facility by the survey organization no later than 30 days after completing the survey. Subsection (n)(1) and (2) defines the Corrective Action Plan expectations. Subsection (o) outlines the appeal process to include a three-person appeal panel. Subsection (p)(2) defines the requirements and process for a waiver agreement. Subsection (r) outlines steps for a neonatal facility that is relinquishing their designation status. Subsection (v) defines that DSHS may deny, suspend, or revoke the designation if a designated neonatal facility ceases to provide services to meet or maintain designation requirements defined in this section.
The proposed amendment to §133.185, concerning Program Requirements, addresses advances in care since the rules were adopted in 2016, integrates telemedicine, and integrates recommendations from the PAC. Subsection (b)(2) defines the requirements for the Neonatal Program Plan. Subsection (b)(2)(D) outlines the requirements for telemedicine and telehealth care for neonatal programs. Subsection (b)(3) defines the requirements for the QAPI Plan. Subsection (b)(3)(D) requires Level III and Level IV facilities to participate in quality benchmarking programs and to integrate the benchmarking reports into the QAPI Plan. Subsection (b)(3)(E) defines that the Neonatal Medical Director must have the authority to make referrals to peer review, receive feedback from the peer review process, and ensure a neonatal physician representation in the peer review process for neonatal cases. Subsection (d)(1) defines the requirements for the Neonatal Medical Director. Subsection (d)(2) defines the requirements for the Transport Medical Director. Subsection (e) clarifies the requirements and expectations for the Neonatal Program Manager.
The proposed amendment to §133.186, concerning Neonatal Designation Level I, reflects the advances and current practices since the adoption of the rules in 2016. Subsection (c)(4) defines the written guidelines for the availability of appropriate anesthesia, laboratory, radiology, respiratory, ultrasonography, and blood bank services on a 24-hour basis.
The proposed amendment to §133.187, concerning Neonatal Designation Level II, reflects the advances and current neonatal practices. Subsection (c)(1) defines the requirement for the neonatal program’s collaboration with the maternal program, consulting physicians, and nursing leadership to ensure pregnant patients who are at high risk of delivering a neonate that requires a higher-level of care be transported to a higher-level facility before delivery, unless the transfer would be unsafe.
The proposed amendment to §133.188, concerning Neonatal Designation Level III, reflects the advances and current neonatal practices. Subsection (a)(5) clarifies the requirements for outreach education.
The proposed amendment to §133.189, concerning Neonatal Designation Level IV, reflects the advances and current neonatal practices. Subsection (d) clarifies the program requirements for the Level IV facilities.
The proposed amendment to §133.190, concerning the Survey Team, provides clarification regarding the survey team requirements. Subsection (c) provides clarification specific to survey team members’ conflict of interest. Subsection (e) requires the survey team to evaluate the use of telehealth/telemedicine utilization for neonatal care.
New §133.191, concerning PCRs, includes rule language to reflect the expectations of the PCR. Subsection (f) clarifies the requirement that the PCR may define data needs for regional collaborations.

Texas Department of Insurance

Proposed Rules Re:

Amending 28 TAC §§1.208 – 1.210 to provide updated TDI contact information on forms and notices issued to the public.

CHAPTER 1. GENERAL ADMINISTRATION
SUBCHAPTER A. RULES OF PRACTICE AND PROCEDURE
DIVISION 2. RULE MAKING PROCEDURES
28 TAC §§1.208 – 1.210

OVERVIEW

The Texas Department of Insurance (TDI) proposes to amend 28 TAC §§1.208 – 1.210, 1.601, 1.602, 1.705, 1.804, and 1.2803. These amendments are necessary to update TDI contact information that appears in rules and forms and to ensure that the public receives updated TDI contact information.

BACKGROUND AND JUSTIFICATION

TDI has moved from its previous location in the William P. Hobby Building at 333 Guadalupe Street in Austin, Texas 78701, to the Barbara Jordan State Office Building at 1601 Congress Avenue in Austin, Texas 78701. Because of this, amendments are necessary to update TDI’s mailing address and physical address where they are listed in current rule sections in Chapter 1. As part of this update, TDI also proposes amendments to revise email addresses and other contact information, where appropriate, to ensure that the rules have TDI’s current information. The amendments also update rule language for consistency with current TDI plain-language preferences and drafting practices. While the amendments relating to consumer notices build in time for compliance, nothing prevents a regulated person from providing TDI’s updated contact information to consumers immediately.

SECTION-BY-SECTION SUMMARY

Section 1.208. Purpose and Applicability. The proposal removes §1.208(a), which describes the purpose of the section, because TDI believes it is no longer necessary to include it in the rule. The remaining subsection designations are changed to reflect the removal of §1.208(a). The proposal also removes “Purpose and” in the section title to reflect the proposed removal of §1.208(a). The proposal also updates implementation dates, where necessary. Documents provided to consumers or the public that include TDI contact information must be updated by July 1, 2023. Documents printed before January 1, 2023, may be used until September 1, 2023.
Nonsubstantive changes include revising references to sections, removing “(HMO),” and replacing “chapter” with “title” to conform with current agency drafting style and plain-language preferences.
Section 1.209. Telephone, Facsimile, Email Address, Website Address, and Street Address in Rules, Forms. Section 1.209 clarifies that current addresses and contact information for TDI should be used as a substitute when text in a TDI rule references outdated TDI contact information. The proposal adds 333 Guadalupe Street, Austin, Texas 78701 as an old address for TDI and provides the updated Congress Avenue address as the substitute. The proposal also adds TDI’s outdated mailing address to rule text and provides the agency’s new mailing address for use as the substitute.
The proposal restructures the section by deleting the subsection (a) designation and replaces subsection (b) with paragraph (3) to reflect the new section structure. The proposal amends the figure citation to “Figure: 28 TAC §1.209(2)” to reflect the proposed rule structure. The proposal also deletes §1.209(c), which references a chart listing rules and forms affected by the rule on TDI’s rule website. The chart will, however, remain on TDI’s website as a reference for rules containing phone numbers that changed in 2014.
The proposal makes nonsubstantive changes to replace the word “facsimile” with the word “fax” as it appears in the section title and in the text of the section for consistency with Figure: 28 TAC §1.209(2). The proposal replaces “street address” with “department addresses” as it appears in the section title to reflect the proposed inclusion of mailing addresses in the section. The proposal also updates internal citations and replaces the word “chapter” with “title” and “HMO” with “health maintenance organizations (HMOs)” to reflect current agency plain-language preferences and drafting style.
Section 1.210. Notice to Customers. Section 1.210 requires insurers and HMOs that issued policies that do not expire but are currently in effect to provide customers with an “Important Notice” in §1.601 and §1.602 by a specific date. The proposed amendments replace the reference to the “Important Notice” with “notice forms required” for accuracy with the current rule language in §1.601. The amendments also propose September 1, 2023, as the date by which regulated entities must comply with the rule.
Nonsubstantive changes include replacing “chapter” with “title” and “HMOs” with “health maintenance organizations” to reflect current agency plain-language preferences and drafting style.

Amending 28 TAC §1.601, §1.602 to update the information on the notice that insurers and HMOs must provide to consumers.

CHAPTER 1. GENERAL ADMINISTRATION
SUBCHAPTER E. NOTICE OF TOLL-FREE TELEPHONE NUMBERS AND PROCEDURES FOR OBTAINING INFORMATION AND FILING COMPLAINTS
28 TAC §1.601, §1.602

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Section 1.601. Notice of Toll-Free Telephone Numbers and Information and Complaint Procedures. Section 1.601 provides insurers and HMOs with a notice they must provide to consumers that contains TDI contact information. The proposal updates TDI’s mailing and email address in Figure: 28 TAC §1.601(a)(2)(B) and Figure: 28 TAC §1.601(a)(2)(C), and it provides in §1.601(e) that insurers and HMOs must begin providing the updated notice forms in information to policyholders by July 1, 2023.
The proposal also makes nonsubstantive changes to remove the statement “the following information” and replace the word “font” with “type” to conform with current agency drafting style.
Section 1.602. Notice of Internet Website. Section 1.602 specifies contact information for TDI that insurers identified in the section must provide to consumers. The proposal updates TDI’s mailing address in Figure: 28 TAC §1.602(b)(1)(C), and it provides in §1.602(b)(1)(C) that insurers must begin providing the updated notice of internet website form to policyholders by July 1, 2023.
The proposal also clarifies which implementation date applies to Figure: 28 TAC §1.602(b)(1)(C) and Figure: 28 TAC §1.602(b)(2) and that insurers must include the language in subparagraphs (A) and (B) of §1.602(b)(1) in the notice required under §1.601(a)(2) with each policy specified.
The proposed amendments make nonsubstantive changes to remove reference to the word “internet” in the section title and the word “and” in §1.602(b)(1)(A). Nonsubstantive changes also replace the word “font” with “type,” “who” with “that,” “Helpinsure.com” with “HelpInsure.com” and the statement “top 25” with “top-25” to conform with current agency drafting style and plain-language preferences.

Amending 28 TAC §19.103 to describe updated reporting procedures for suspected violations relating to Agent Authority to Market Medicare Advantage Plans, Medicare Advantage Prescription Drug Plans, and Medicare Prescription Drug Plans.

CHAPTER 19. LICENSING AND REGULATION OF INSURANCE PROFESSIONALS
SUBCHAPTER B. MEDICARE ADVANTAGE PLANS, MEDICARE ADVANTAGE PRESCRIPTION DRUG PLANS, AND MEDICARE PART D PLANS
28 TAC §19.103

OVERVIEW

Section 19.103. Reporting Requirement. The proposal replaces an obsolete mailing address with a reference to contact information on TDI’s website. The proposal also replaces “subchapter” with “title.”

BACKGROUND AND JUSTIFICATION

The proposed repeal of §19.703 implements Senate Bill 1060, 84th Legislature, 2015. The proposed repeals of §§19.1019, 19.1905, and 19.3001 – 19.3005 implement House Bill 4030, 87th Legislature, 2021. The proposed repeal of §19.1303 eliminates the forms adopted by reference in that section that are now obsolete. The proposed repeal of §19.1320 reflects that copies of the Texas Insurance Code and Texas Administrative Code are readily available online through the Secretary of State website. The proposed repeals of §§19.4001 – 19.4017 remove Subchapter W, which implemented former Chapter 4154 of the Insurance Code. That chapter expired on September 1, 2017, rendering Subchapter W obsolete.

The proposed amendments implement HB 4030 as well as Senate Bills 1060 and 876, both of the 84th Legislature, 2015. HB 4030 removed the subagent designation, references to life and health insurance counselor and insurance service representative licenses, the affidavit requirement for nonresident public insurance adjusters, and the requirement to report and register each branch location; discontinued the registration for home office salaried employees; and increased ethics continuing education requirements. SB 1060 eliminated the trainee designation and SB 876 changed the expiration date for a license issued to an individual.

In addition to amendments to implement the referenced legislation, proposed amendments also include nonsubstantive changes to conform to plain-language standards and current TDI language preferences and drafting practices. Also, proposed amendments update citations to statutes and rules by inserting their titles, and update or eliminate obsolete email and mailing addresses.

Amending 28 TAC §19.1604, §19.1605 to provide that TDI will send renewal notices via email and to clarify renewal submission and filing requirements as they relate to the Discount Health Care Program.

CHAPTER 19. LICENSING AND REGULATION OF INSURANCE PROFESSIONALS
SUBCHAPTER Q. DISCOUNT HEALTH CARE PROGRAM REGISTRATION AND RENEWAL REQUIREMENTS
28 TAC §19.1604, §19.1605

OVERVIEW

Section 19.1604. Renewal. The proposal amends the section to provide that TDI will send renewal notices by email rather than mail. It also clarifies that a discount health care program operator’s current address is presumed to be’ the address on file with TDI. The proposal also clarifies the renewal submission requirements by using plain language and replacing an obsolete address with references to TDI’s website. The proposal also replaces “shall” with “will” and “subchapter” and “chapter” with “title,” updates the title of an Occupations Code section, and deletes five unnecessary uses of the word “the.” Finally, the proposal inserts titles of Insurance Code provisions referenced in the section.

Section 19.1605. Requirements Related to Discount Health Care Program Information. The proposal clarifies filing requirements by removing an obsolete mailing address, email address, phone number, and fax number and instead referencing TDI’s website. The proposal also replaces “shall” with “must,” “subchapter” with “title,” and deletes four unnecessary uses of the word “the.” Finally, the proposal inserts the title of an Insurance Code provision referenced in the section.

BACKGROUND AND JUSTIFICATION

Amending 28 TAC §19.1704 to capitalize “commissioner” and replace an obsolete mailing address with the current mailing address for requirements related to utilization reviews for health care provided under a health benefit plan or health insurance policy.

CHAPTER 19. LICENSING AND REGULATION OF INSURANCE PROFESSIONALS
SUBCHAPTER R. UTILIZATION REVIEWS FOR HEALTH CARE PROVIDED UNDER A HEALTH BENEFIT PLAN OR HEALTH INSURANCE POLICY
DIVISION 1. UTILIZATION REVIEWS
28 TAC §19.1704

OVERVIEW

Section 19.1704. Certification or Registration of URAs. The proposal capitalizes “commissioner” where it appears in lowercase and replaces an obsolete mailing address with the current mailing address. The proposal also inserts titles of Insurance Code provisions referenced in the section.

BACKGROUND AND JUSTIFICATION

Amending 28 TAC §19.1810, §19.1820 to capitalize “commissioner” and update the mailing address for Prior Authorization Request Forms.

CHAPTER 19. LICENSING AND REGULATION OF INSURANCE PROFESSIONALS
SUBCHAPTER S. FORMS TO REQUEST PRIOR AUTHORIZATION
28 TAC §19.1810, §19.1820

OVERVIEW

Section 19.1810. Prior Authorization Request Form for Health Care Services, Required Acceptance, and Use. The proposal capitalizes “commissioner” where it appears in lowercase, replaces an obsolete mailing address with the current mailing address, and inserts the title of an Administrative Code section cited within the section.

Section 19.1820. Prior Authorization Request Form for Prescription Drug Benefits, Required Acceptance, and Use. The proposal capitalizes “commissioner” where it appears in lowercase and replaces an obsolete mailing address with the current mailing address. The proposal also replaces “facsimile (fax)” with “fax.”

BACKGROUND AND JUSTIFICATION

Repealing 28 TAC §§19.4001 – 19.4017, which concerned regulation of navigators for health benefit exchanges.

CHAPTER 19. LICENSING AND REGULATION OF INSURANCE PROFESSIONALS
SUBCHAPTER W. REGULATION OF NAVIGATORS FOR HEALTH BENEFIT EXCHANGES
28 TAC §§19.4001 – 19.4017

OVERVIEW

The proposed repeals of §§19.4001 – 19.4017 remove Subchapter W, which implemented former Chapter 4154 of the Insurance Code. That chapter expired on September 1, 2017, rendering Subchapter W obsolete.

BACKGROUND AND JUSTIFICATION

Texas Health and Human Services Commission

In Addition Re:

Notice of Public Hearing on Proposed Updates to Medicaid Payment Rates

OVERVIEW

Hearing. The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on February 3, 2023, at 9:00 a.m., to receive public comments on proposed updates to Medicaid payment rates resulting from Calendar Fee Reviews, Medical Policy Reviews, and Healthcare Common Procedure Coding System HCPCS Reviews.

Statewide Transition Plan for Medicaid Home and Community Based Services Settings

OVERVIEW

Public Notice: Statewide Transition Plan for Medicaid Home and Community Based Services Settings

The Texas Health and Human Services Commission (HHSC) announces its intent to submit a Statewide Transition Plan (STEP) to the Centers for Medicare & Medicaid Services (CNS) for approval, as required in Title 42 Code of Federal Regulations, Sections 441.301(c)(6) and 441.710(a)(3). The STEP describes HHSC’s planned activities to achieve full and ongoing compliance with the federal Home and Community Based Services (DABS) settings regulations. The STEP is expected to be submitted to CNS in February 2023.

CNS has issued federal regulations that add requirements for settings where Medicaid DABS are provided. The regulations require that a Medicaid DABS setting be selected by the person receiving Medicaid DABS. Medicaid DABS settings must also be integrated in and support the person’s full access to the community. CNS has given states until March 17, 2023, to bring Medicaid DABS settings into compliance with the regulations.

CNS requires states to submit an STEP describing their planned initiatives and activities to achieve compliance with the federal DABS settings regulations. The STEP must include:

An assessment of settings where Medicaid DABS are provided;
Rendition strategies for settings that do not meet the requirements of the regulations;
A summary of public and stakeholder input on the assessment processes and rendition strategies; and
A summary of public comments received on the transition plan and any revisions made to the plan in response to public comment.

HHSC has amended the version of the STEP previously submitted to CNS based on public comments and guidance from CNS. This amended version of the STEP includes updated information on site-specific assessments conducted for the following setting types:

Three-person and four-person residences and host home and companion care residences in the Home and Community-based Services (HAS) waiver program;
Adult foster care homes in the Strapless DABS waiver program; and
Assisted living facilities in the Deaf Blind with Multiple Disabilities waiver program.