Texas Register January 27, 2023 Volume: 48 Number: 4

Texas Register Table of Contents

1 Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed one individual to the Nursing Facility Administrative Advisory Committee.
  - 1.0.2 Proclamations Re:
    - 1.0.2.1 The Governor issued a proclamation renewing the COVID–19 disaster declaration for all Texas counties.
2 Texas Health and Human Services Commission
3 Department of Aging and Disability Services
- - 3.0.1 Adopted Rules Re:
4 Texas Department of Insurance
- - 4.0.1 In Addition Re:
    - 4.0.1.1 Notice of Public Hearing: Employer-Related Health Benefit Plan Regulations Docket No. 2836

Governor

Appointments Re:

The Governor appointed one individual to the Nursing Facility Administrative Advisory Committee.

Appointments for January 13, 2023

Appointed to the Nursing Facility Administrators Advisory Committee for a term to expire February 1, 2027, Donald L. “Don” King of Fort Worth, Texas (replacing Ronald S. “Ron” Palomares, Ph.D. of Dallas who resigned).

Proclamations Re:

The Governor issued a proclamation renewing the COVID–19 disaster declaration for all Texas counties.

Proclamation 41-3953
TO ALL TO WHOM THESE PRESENTS SHALL COME:

WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that COVID-19 poses an imminent threat of disaster for all counties in the State of Texas; and

WHEREAS, in each subsequent month effective through today, I have issued proclamations renewing the disaster declaration for all Texas counties; and

WHEREAS, pursuant to the Texas Disaster Act of 1975, I have issued a series of executive orders and suspensions of Texas laws aimed at protecting the health and safety of Texans, ensuring uniformity throughout the State, and achieving the least restrictive means of combatting the evolving threat posed by COVID-19; and

WHEREAS, Executive Orders GA-13, GA-37, GA-38, GA-39, and GA-40 remain in effect with “the force and effect of law” under Section 418.012 of the Texas Government Code; and

WHEREAS, ending the disaster declaration would terminate the executive orders that protect Texans’ freedom by suspending the power of local governments to require masks, compel vaccinations, and close businesses; and

WHEREAS, I intend to keep these executive orders and suspensions in place until the Legislature can enact laws this session to prohibit local governments from imposing restrictions like mask mandates and vaccine mandates; and

WHEREAS, renewing the disaster declaration in no way infringes on the rights or liberties of any law-abiding Texans; and

WHEREAS, under the Texas Disaster Act of 1975, a state of disaster continues to exist in all counties during Texas’ successful economic recovery from COVID-19;

NOW, THEREFORE, in accordance with the authority vested in me by Section 418.014 of the Texas Government Code, I do hereby renew the disaster proclamation for all counties in Texas.

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

Under the terms of Executive Orders GA-38, GA-39, and GA-40, all of which remain in effect by virtue of this renewal, local governments are divested of any lawful authority to subject Texans to mask mandates, vaccine mandates, or business-closure mandates. As a matter of state law, COVID-19 cannot justify those local intrusions upon personal liberty.

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, I hereby suspend 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.

IN TESTIMONY WHEREOF, I have hereunto signed my name and have officially caused the Seal of State to be affixed at my office in the City of Austin, Texas, this the 15th day of January, 2023.

Texas Health and Human Services Commission

Emergency Rules Re:

Adopting 26 TAC §600.1, permitting qualified rural hospitals to apply for licensure as a limited service rural hospital.

Emergency Rules Re:
CHAPTER 600. LIMITED SERVICES RURAL HOSPITALS
26 TAC §600.1

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 600, Limited Services Rural Hospitals, new §600.1, concerning an emergency rule to permit qualified rural hospitals to apply for licensure as a limited services rural hospital.

This emergency rule is proposed under and implements Texas Health and Safety Code Chapter 241, Subchapter K, which allows a qualified rural hospital that is designated as rural emergency hospital by the Centers for Medicare and Medicaid Services (CMS) to become licensed as a limited services rural hospital and remain open to treat patients.

The purpose of the emergency rulemaking is to implement Senate Bill 1621, 86th Legislature, Regular Session, 2019, which the Legislature enacted to further federal efforts to ensure individuals living in rural areas continue to have access to hospital care, in response to the closure of rural hospitals. HHSC accordingly finds that this threat to access to hospital care constitutes an imminent peril to the public health, safety, and welfare of the state that requires immediate adoption of this emergency rule for limited services rural hospitals.

HHSC is adopting this emergency rule to permit a qualified rural hospital to become licensed as a limited services rural hospital under Texas Health and Safety Code Chapter 241, Subchapter K.

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.

Senate Bill 1621 added Texas Health and Safety Code Chapter 241, Subchapter K, which, in part, requires HHSC to adopt licensing standards for limited services rural hospitals if the United States Congress passes a bill creating a payment program specifically for limited services rural hospitals or similarly designated hospitals that becomes law. The Consolidated Appropriations Act, 2021, became law on December 27, 2020, and required CMS to establish a federal rural emergency hospital designation. The CMS conditions of participation for rural emergency hospitals took effect January 1, 2023.

The requirements and flexibilities established in this section are applicable while this emergency rule is in effect pursuant to Texas Government Code §2001.034 (relating to Emergency Rulemaking) and Texas Government Code §531.0055 (relating to Executive Commissioner: General Responsibility for Health and Human Services System, respectively).

Adopted Rules Re:

New 26 TAC §§259.5, 259.7, 259.9, providing new definitions, a description of the CLASS Program and CFC Option, and a description of services not provided through the CLASS Program.

CHAPTER 259. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES (CLASS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER A. DEFINITIONS, DESCRIPTION OF SERVICES, AND EXCLUDED SERVICES
26 TAC §§259.5, 259.7, 259.9

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts Title 26, Part 1, new Chapter 259, Community Living Assistance and Support Services (CLASS) Program and Community First Choice (CFC) Services, consisting of Subchapters A – J, comprised of §§259.5, 259.7, 259.9, 259.51, 259.53, 259.55, 259.57, 259.59, 259.61, 259.63, 259.65, 259.67, 259.69, 259.71, 259.73, 259.75, 259.77, 259.79, 259.81, 259.83, 259.85, 259.87, 259.89, 259.101, 259.103, 259.151, 259.153, 259.155, 259.157, 259.159, 259.161, 259.163, 259.165, 259.167, 259.169, 259.171, 259.201, 259.203, 259.205, 259.207, 259.209, 259.211, 259.213, 259.215, 259.217, 259.251, 259.253, 259.255, 259.257, 259.259, 259.261, 259.263, 259.265, 259.267, 259.271, 259.273, 259.275, 259.277, 259.279, 259.281, 259.283, 259.285, 259.287, 259.289, 259.301, 259.303, 259.305, 259.307, 259.309, 259.311, 259.313, 259.315, 259.317, 259.319, 259.321, 259.351, 259.353, 259.355, 259.357, 259.359 – 259.361, 259.363, 259.365, 259.367, 259.369, 259.371, 259.373, 259.401, and 259.451.

Sections 259.5, 259.7, 259.51, 259.57, 259.59, 259.61, 259.201, 259.203, 259.205, 259.207, 259.209, 259.211, 259.213, 259.215, 259.289, 259.311, and 259.355 are adopted with changes to the proposed text as published in the September 2, 2022, issue of the Texas Register (47 TexReg 5236). These rules will be republished.

Sections 259.9, 259.53, 259.55, 259.63, 259.65, 259.67, 259.69, 259.71, 259.73, 259.75, 259.77, 259.79, 259.81, 259.83, 259.85, 259.87, 259.89, 259.101, 259.103, 259.151, 259.153, 259.155, 259.157, 259.159, 259.161, 259.163, 259.165, 259.167, 259.169, 259.171, 259.217, 259.251, 259.253, 259.255, 259.257, 259.259, 259.261, 259.263, 259.265, 259.267, 259.271, 259.273, 259.275, 259.277, 259.279, 259.281, 259.283, 259.285, 259.287, 259.301, 259.303, 259.305, 259.307, 259.309, 259.313, 259.315, 259.317, 259.319, 259.321, 259.351, 259.353, 259.357, 259.359, 259.360, 259.361, 259.363, 259.365, 259.367, 259.369, 259.371, 259.373, 259.401, and 259.451. are adopted without changes to the proposed text as published in the September 2, 2022, issue of the Texas Register (47 TexReg 5236). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The Community Living Assistance and Support Services (CLASS) Program is a Medicaid waiver program approved by the Centers for Medicare & Medicaid Services (CMS) under §1915(c) of the Social Security Act. This waiver program provides community-based services and supports to eligible individuals as an alternative to services provided in an institutional setting. In the CLASS Program there are two types of program providers. One is the case management agency (CMA) and the other is the direct services agency (DSA).

The adopted rules move the CLASS Program rules from 40 TAC, Chapter 45 to 26 TAC, Chapter 259. The repeal of 40 TAC, Chapter 45, is adopted elsewhere in this issue of the Texas Register.

The adopted rules ensure that the CLASS Program complies with the requirements in Title 42, Code of Federal Regulations (42 CFR), Chapter IV, Subchapter C, Part 441, Subpart G, Section 441.301(c)(1) – (5). In 2014, CMS amended this regulation to establish new requirements for Medicaid Home and Community-Based Services (HCBS) waiver programs, including requirements for HCBS program settings and person-centered planning. The deadline for compliance with the requirements in Section 441.301(c)(1) – (5) is March 17, 2023. The adopted rules ensure compliance with these federal requirements for all services available in the CLASS Program.

The adopted rules implement Texas Government Code §531.02161(b)(4) which requires HHSC to ensure that, if cost effective, clinically effective, and allowed by federal law, a Medicaid recipient has the option to receive certain services, including occupational therapy, physical therapy, and speech and language pathology as a telehealth service.

The adopted rules require program providers to submit a translation of non-English documentation submitted to HHSC. The adopted rule helps ensure that HHSC’s reviews of documentation are efficient.

The adopted rules provide that HHSC may allow program providers to use one or more of the exceptions specified in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. This provision is adopted to help ensure that providers are able to operate and provide services effectively during a disaster.

New 26 TAC §259.51, §259.53, regarding eligibility criteria for CLASS Program Services and CFC Services and a description of how HHSC maintains a list for individuals interested in receiving services in the CLASS Program.

CHAPTER 259. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES (CLASS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW
26 TAC §259.51, §259.53

OVERVIEW

BACKGROUND AND JUSTIFICATION

The adopted rules move the CLASS Program rules from 40 TAC, Chapter 45 to 26 TAC, Chapter 259. The repeal of 40 TAC, Chapter 45, is adopted elsewhere in this issue of the Texas Register.

The adopted rules require program providers to submit a translation of non-English documentation submitted to HHSC. The adopted rule helps ensure that HHSC’s reviews of documentation are efficient.

New 26 TAC §§259.55, 259.57, 259.59, 259.61, 259.63, 259.65, 259.67, 259.69, 259.71, 259.73, describing the enrollment process for CLASS Services Programs, the person-centered planning process, requirements for CLASS Service Programs and CFC services, enrollment in individual plan of care (IPC), the development of IPCs, development and enrollment of individual program plans (IPP), and consumer directed services (CDS) options.

CHAPTER 259. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES (CLASS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW
26 TAC §§259.55, 259.57, 259.59, 259.61, 259.63, 259.65, 259.67, 259.69, 259.71, 259.73

OVERVIEW

BACKGROUND AND JUSTIFICATION

The adopted rules move the CLASS Program rules from 40 TAC, Chapter 45 to 26 TAC, Chapter 259. The repeal of 40 TAC, Chapter 45, is adopted elsewhere in this issue of the Texas Register.

The adopted rules require program providers to submit a translation of non-English documentation submitted to HHSC. The adopted rule helps ensure that HHSC’s reviews of documentation are efficient.

OVERVIEW

BACKGROUND AND JUSTIFICATION

The adopted rules move the CLASS Program rules from 40 TAC, Chapter 45 to 26 TAC, Chapter 259. The repeal of 40 TAC, Chapter 45, is adopted elsewhere in this issue of the Texas Register.

The adopted rules require program providers to submit a translation of non-English documentation submitted to HHSC. The adopted rule helps ensure that HHSC’s reviews of documentation are efficient.

OVERVIEW

BACKGROUND AND JUSTIFICATION

The adopted rules move the CLASS Program rules from 40 TAC, Chapter 45 to 26 TAC, Chapter 259. The repeal of 40 TAC, Chapter 45, is adopted elsewhere in this issue of the Texas Register.

The adopted rules require program providers to submit a translation of non-English documentation submitted to HHSC. The adopted rule helps ensure that HHSC’s reviews of documentation are efficient.

New 26 TAC §§259.301, 259.303, 259.305, 259.307, 259.309, 259.311, 259.313, 259.315, 259.317, 259.319, 259.321, regarding CMA requirements, duties, and training.

CHAPTER 259. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES (CLASS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER G. ADDITIONAL CMA REQUIREMENTS
26 TAC §§259.301, 259.303, 259.305, 259.307, 259.309, 259.311, 259.313, 259.315, 259.317, 259.319, 259.321

OVERVIEW

BACKGROUND AND JUSTIFICATION

The adopted rules move the CLASS Program rules from 40 TAC, Chapter 45 to 26 TAC, Chapter 259. The repeal of 40 TAC, Chapter 45, is adopted elsewhere in this issue of the Texas Register.

The adopted rules require program providers to submit a translation of non-English documentation submitted to HHSC. The adopted rule helps ensure that HHSC’s reviews of documentation are efficient.

New 26 TAC §§259.351, 259.353, 259.355, 259.357, 259.359, 259.360, 259.361, 259.363, 259.365, 259.367, 259.369, 259.371, 259.373, regarding DSA requirements.

CHAPTER 259. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES (CLASS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER H. ADDITIONAL DSA REQUIREMENTS
26 TAC §§259.351, 259.353, 259.355, 259.357, 259.359 – 259.361, 259.363, 259.365, 259.367, 259.369, 259.371, 259.373

OVERVIEW

BACKGROUND AND JUSTIFICATION

The adopted rules move the CLASS Program rules from 40 TAC, Chapter 45 to 26 TAC, Chapter 259. The repeal of 40 TAC, Chapter 45, is adopted elsewhere in this issue of the Texas Register.

The adopted rules require program providers to submit a translation of non-English documentation submitted to HHSC. The adopted rule helps ensure that HHSC’s reviews of documentation are efficient.

New 26 TAC §259.401, regarding financial errors and the circumstances by which HHSC will apply an error and reimburse the program provider.

CHAPTER 259. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES (CLASS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER I. FISCAL MONITORING
26 TAC §259.401

OVERVIEW

BACKGROUND AND JUSTIFICATION

The adopted rules move the CLASS Program rules from 40 TAC, Chapter 45 to 26 TAC, Chapter 259. The repeal of 40 TAC, Chapter 45, is adopted elsewhere in this issue of the Texas Register.

The adopted rules require program providers to submit a translation of non-English documentation submitted to HHSC. The adopted rule helps ensure that HHSC’s reviews of documentation are efficient.

New 26 TAC §259.451, describing exceptions to certain requirements during the declaration of a disaster.

CHAPTER 259. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES (CLASS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER J. DECLARATION OF DISASTER
26 TAC §259.451

OVERVIEW

BACKGROUND AND JUSTIFICATION

The adopted rules move the CLASS Program rules from 40 TAC, Chapter 45 to 26 TAC, Chapter 259. The repeal of 40 TAC, Chapter 45, is adopted elsewhere in this issue of the Texas Register.

The adopted rules require program providers to submit a translation of non-English documentation submitted to HHSC. The adopted rule helps ensure that HHSC’s reviews of documentation are efficient.

In Addition Re:

Notice of Stakeholder Engagement Meetings for Medicaid Payment Rates

MEETINGS.

The Texas Health and Human Services Commission (HHSC) will conduct stakeholder engagement meetings on February 16, 2023, to receive comments on Medicaid payment rate topics that may potentially be addressed at the upcoming May 2023 rate hearings. Commentary will be collected solely on the topics listed in this notice. Proposed rates will not be published at this time.

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

Editor’s Note: The Texas Health and Human Services Commission (HHSC) published a public notice regarding the Statewide Transition Plan for Medicaid Home and Community Based Services Settings in the January 13, 2023, issue of the Texas Register. Due to an error by the Texas Register, some of the text in the notice was published incorrectly. The correct notice is republished in its entirety below.

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

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

Department of Aging and Disability Services

Adopted Rules Re:

Repealing 40 TAC §§45.101 – 45.105, which described the purpose, definitions, application, and description of the CLASS Program.

CHAPTER 45. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
40 TAC §§45.101 – 45.105

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 §§45.101 – 45.105, 45.201, 45.202, 45.211 – 45.218, 45.221 – 45.227, 45.231, 45.301, 45.302, 45.401 – 45.410, 45.503, 45.505, 45.521 – 45.525, 45.531, 45.533, 45.601 – 45.609, 45.611 – 45.619, 45.621, 45.701 – 45.709, 45.801 – 45.811, and 45.902 in Texas Administrative Code Title 40 (40 TAC), Part 1, Chapter 45, related to the Community Living Assistance and Support Services and Community First Choice (CFC) Services.

In Addition Re:

Notice of Public Hearing: Employer-Related Health Benefit Plan Regulations Docket No. 2836

The Texas Department of Insurance (TDI) will have a public hearing to consider the proposed amendments to 28 TAC Chapter 26, concerning employer-related health benefit plan regulations, including the proposed amendments to §26.5 and §26.301, published in the Texas Register on December 23, 2022, at (47 TexReg 8479). The hearing will be in person and begin at 10:00 a.m., central time, February 10, 2023, in Room 2.029 of the Barbara Jordan State Office Building, 1601 Congress Avenue, in Austin, Texas.