Texas Register March 10, 2023 Volume: 48 Number: 10

Texas Board of Chiropractic Examiners

Proposed Rules Re:

Amending 22 TAC §73.2, clarifying how to Board will determine if a licensee is out of compliance.

CHAPTER 73. CONTINUING EDUCATION
22 TAC §73.2

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to 22 TAC §73.2 (Failure to Meet Continuing Education Requirements). The amendment simply clarifies that the Board will determine a licensee is out of compliance of the licensee’s continuing education requirements by means of a 10% random audit by the Board. This change from a 100% audit of licensees’ continuing education hours to a random audit was recommended by the Sunset Commission.

BACKGROUND AND JUSTIFICATION

The Board’s Executive Director, Patrick Fortner, has determined that for the first five-year period the amended rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the amendment as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendment will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

---

Adopted Rules Re:

Repealing 22 TAC §73.3, which pertains to requirements for Sponsors of Continuing Education.

CHAPTER 73. CONTINUING EDUCATION
22 TAC §73.3

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §73.3 (Requirements for Sponsors of Continuing Education Courses), as published in the November 18, 2022, issue of the Texas Register (47 TexReg 7635). The Board has proposed a new §73.3 in a separate rulemaking. This rulemaking action will update language of what topics a sponsor of continuing education may provide to licensees.

---

New 22 TAC §73.3, updating the requirements for continuing education courses.

CHAPTER 73. CONTINUING EDUCATION
22 TAC §73.3

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §73.3 (Requirements for Sponsors of Continuing Education Courses), without changes, as published in the November 18, 2022, issue of the Texas Register (47 TexReg 7636) and will not be republished. The current §73.3 is being repealed in a separate rulemaking action.

Under Texas Occupations Code §201.356, the Board is required to adopt requirements for its licensees for continuing education courses relating to the practice of chiropractic. The Board determined that the topics in current subsection (j)(4) needed updating.

Additionally, the rule clarifies that topics for instruction must be within or relate to the chiropractic scope of practice. As portal-of-entry healthcare providers in Texas, chiropractors, while performing a differential diagnosis of a patient, must be able to recognize conditions that may not be within their scope of practice in order to properly refer a patient to another healthcare provider. The rule keeps the current requirement that all continuing education courses must be approved by the Board beforehand.

---

Repealing 22 TAC §75.6, concerning mandatory notice to the public.

CHAPTER 75. BUSINESS PRACTICES
22 TAC §75.6

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §75.6 (Mandatory Notice to Public), without changes, as published in the November 18, 2022, issue of the Texas Register (47 TexReg 7637). The Board will adopt a new §75.6 in a separate rulemaking. The rule will not be republished.

---

New 22 TAC §75.6, updating the Board’s address and contact information for public placards on the graphics that licensees are required to display.

CHAPTER 75. BUSINESS PRACTICES
22 TAC §75.6

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §75.6 (Mandatory Notice to Public) without changes, as published in the November 18, 2022, issue of the Texas Register (47 TexReg 7638). The current §75.6 is being repealed in a separate rulemaking action. The new rule simply updates the Board’s address and contact information on the mandatory notice to the public placard contained in the attached graphic that licensees are required to display. The rule also clarifies that a licensee must provide access to the notice to patients during telehealth sessions. The rule will not be republished.

---

New 22 TAC §75.11, permitting licensees to charge a no-show fee to patients under certain circumstances.

CHAPTER 75. BUSINESS PRACTICES
22 TAC §75.11

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §75.11 (Appointment Cancellation or No-Show Fees) without changes as published in the November 18, 2022, issue of the Texas Register (47 TexReg 7639). The rule will not be republished.

Under the Board’s statutes in Occupations Code Chapter 201, there is currently nothing to prevent a licensee from charging a patient a cancellation or no-show fee for a patient’s failure to attend a scheduled appointment with the licensee. It is a permissible practice. However, the Board nonetheless continually receives questions on this topic from its licensees looking for guidance. Instead of answering licensees’ questions one-by-one, the Board believes a rule containing its written guidance on the topic would be beneficial to both licensees and patients.

The rule states that charging cancellation or no-show fees to patients is a permissible practice, as long as the fee is reasonable and patients are notified of the licensee’s fee policies in advance and in writing. The rule also restates current law that cancellation or no-show fees are an administrative fee and not to be attributed to actual chiropractic services rendered

---

Repealing 22 TAC §76.3, concerning fees for providing patient records.

CHAPTER 76. PATIENT RECORDS AND DOCUMENTATION
22 TAC §76.3

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §76.3 (Fees for Providing Patient Records), as published in the November 18, 2022, issue of the Texas Register (47 TexReg 7640) and will not be republished. The Board will adopt a new §76.3 in a separate rulemaking.

---

New 22 TAC §76.3, clarifying the language that concerns charging patients additional fees for providing patient records.

CHAPTER 76. PATIENT RECORDS AND DOCUMENTATION
22 TAC §76.3

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §76.3 (Fees for Providing Patient Records), without changes, as published in the November 18, 2022, issue of the Texas Register (47 TexReg 7640). The rule will not be republished. The current §76.3 is being repealed in a separate rulemaking action.

The adopted rule does not substantively change the current one. Licensees informed the Board that they were confused as to the clear meaning of subsections (a) through (d) relating to the minimum fee a licensee could charge (and additional fees for additional pages) for providing patient records. The Board agreed the language could be improved. The Board trusts the new language is more precise as to the amount of permissible administrative fees a licensee can charge a patient for records.

The Board received one comment from the public, who suggested the Board link the fees licensees can charge to the rate of inflation. Because there is no mechanism for doing so within the rule itself, the Board declines to adopt the suggestion. However, the Board will periodically review the amount of permissible fees to make sure licensees are not forced to bear unreasonable costs due to inflation and consider additionally amending §76.3.

The rule is adopted under Texas Occupations Code §201.152, which authorizes the Board to adopt rules necessary to perform the Board’s duties and to regulate the practice of chiropractic.

---

State Board of Dental Examiners

Adopted Rules Re:

Amending 22 TAC §104.1, regarding continuing education requirements.

CHAPTER 104. CONTINUING EDUCATION
22 TAC §104.1

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §104.1, concerning continuing education requirements. The adopted amendment updates subsection (6) to reflect the merger of the regional examining board CDCA-WREB-CITA, and includes the regional examining board States Resources for Testing and Assessments (SRTA). This rule is adopted without changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8452), and will not be republished.

---

Amending 22 TAC §114.1, which addresses the permitted duties of a dental assistant.

CHAPTER 114. EXTENSION OF DUTIES OF AUXILIARY PERSONNEL–DENTAL ASSISTANTS
22 TAC §114.1

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §114.1, concerning permitted duties of a dental assistant. The adopted amendment updates the language with the applicable section of the Dental Practice Act. Specifically, Texas Occupations Code §265.005 was repealed and the applicable section is currently Texas Occupations Code §265.001. This rule is adopted without changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8455) and will not be republished.

---

Amending 22 TAC §114.6, regarding qualifications for registration or certification of a dental assistant.

CHAPTER 114. EXTENSION OF DUTIES OF AUXILIARY PERSONNEL–DENTAL ASSISTANTS
22 TAC §114.6

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §114.6, concerning general qualifications for registration or certification of a dental assistant. The adopted amendment updates the language with the applicable section of the Dental Practice Act. Specifically, Texas Occupations Code §265.005 was repealed and the applicable section is currently Texas Occupations Code §265.001(d). The amendment also removes certain portions of subsection (g) of this rule because it contains language from 22 Texas Administrative Code §101.8 that is duplicative or no longer in effect. This rule is adopted with no changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8456), and will not be republished.

---

Amending 22 TAC §114.21, addressing the requirements for dental assistant registration courses and examinations.

CHAPTER 114. EXTENSION OF DUTIES OF AUXILIARY PERSONNEL–DENTAL ASSISTANTS
22 TAC §114.21

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §114.21, concerning requirements for dental assistant registration courses and examinations. The adopted amendment removes language pertaining to the Dental Assistant Advisory Committee because the committee is no longer required by the Dental Practice Act and the Board does not currently have a need for the committee. This rule is adopted with no changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8458), and will not be republished.

---

Amending 22 TAC §115.2, regarding the permitted duties of dental hygienists.

CHAPTER 115. EXTENSION OF DUTIES OF AUXILIARY PERSONNEL–DENTAL HYGIENE
22 TAC §115.2

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §115.2, concerning permitted duties of a dental hygienist. The adopted amendment updates the language to reflect that the Board no longer issues certificates to dental hygienists to apply pit and fissure sealants or to monitor nitrous oxide. Dental hygienists must continue to ensure they meet all qualifications required by the Dental Practice Act and Board rules before performing a service or procedure. This rule is adopted with no changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8459), and will not be republished.

---

Proposed Rule Reviews Re:

Title 22, Part 5, reviewing dental licensure and fees.

The Texas State Board of Dental Examiners (Board) files this Notice of Intent to Review to consider for re-adoption, revision, or repeal the chapters listed below, in their entirety, contained in Title 22, Part 5, of the Texas Administrative Code. This review is being conducted in accordance with Texas Government Code §2001.039.

Rule Chapters Under Review

Chapter 100, General Provisions

Chapter 101, Dental Licensure

Chapter 102, Fees

During the review, the Board will assess whether the reasons for adopting or readopting the rules in these chapters continue to exist. The Board will review each rule to determine whether it is obsolete, whether the rule reflects current legal and policy considerations, and whether the rule reflects current Board procedures. This review is required every four years.

---

Texas Health and Human Services Commission

In Addition Re:

Public Notice – Amendment of the Texas Healthcare Transformation and Quality Improvement Program (THTQIP) Waiver

OVERVIEW

The Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the Texas Healthcare Transformation and Quality Improvement Program (THTQIP) waiver under section 1115 of the Social Security Act. The current waiver is approved through September 2030. The proposed effective date for this amendment is December 31, 2023.

The THTQIP Waiver that was approved on January 15, 2021 includes Special Term and Condition (STC) 41(d), which requires HHSC to reassess the Uncompensated Care (UC) Pool a second time. The approach to reassessment uses a methodology that relies on audited data from the disproportionate share hospital audits to reflect the Medicaid payments, which are offset against cost data from a Medicare cost report. When negotiating the waiver, CMS agreed to use different data sets than the typical methodology would require for the first reassessment of UC due to the potential impact of COVID-19 on the data that would normally have been used.

---

Public Notice – Texas State Plan Amendment

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act. The proposed amendment is effective March 11, 2021.

The proposed amendment documents coverage of COVID-19 tests as a benefit in Texas Medicaid, including at-home tests provided through a pharmacy.

The proposed amendment is estimated to result in an additional annual aggregate expenditure of $102,555,733 for federal fiscal year (FFY) 2021, consisting of $69,748,154 in federal funds and $32,807,579 in state general revenue. For FFY 2022, the estimated additional annual expenditure is $179,406,722 consisting of $120,202,504 in federal funds and $59,204,218 in state general revenue. For FFY 2023, the estimated additional annual expenditure is $89,905,822 consisting of $58,303,926 in federal funds and $31,601,897 in state general revenue.

---

Public Notice – Texas State Plan for Medical Assistance Amendment

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 April 1, 2023.

---