Texas Register June 2, 2023 Volume: 48 Number: 22

Texas Optometry Board

Proposed Rules Re:

Amending 22 TAC §§273.7, 273.8, 273.12, 273.14, 273.15, modernizing the licensing and license renewal process.

CHAPTER 273. GENERAL RULES
22 TAC §§273.7, 273.8, 273.12, 273.14, 273.15

OVERVIEW

The Texas Optometry Board proposes amendments to 22 TAC Chapter 273, General Rules, §§273.7, 273.8, 273.12, 273.14 and 273.15.

BACKGROUND AND JUSTIFICATION

The rules in the Chapter 273 were reviewed by the Board’s Administration and Licensing Committee in January 2023 to ensure the licensing and renewal process was efficient and effective. At the January 19, 2023, committee meeting, members voted to move forward with changes to update and modernize the process and to refer the proposal to the Rules Committee. At the April 27, 2023, Rules Committee meeting, the members concurred with the recommendations of the Administration and Licensing Committee and proposed the following amendments to the licensing and renewal process.

During the April 28, 2023, meeting the Board determined that there continues to be a need for the rules in Chapter 273. The Board has also determined that changes to certain rules as currently in effect are necessary. The specific rules being amended include: §273.7 – Inactive Licenses and Retired License for Volunteer Charity Care (to include splitting one rule into two separate rules for clarification purposes), §273.8 – Renewal of License, §273.12 – Profile Information, and §273.14 – License Applications for Military Service Member, Military Veteran, and Military Spouse. As noted above, the Board proposes to adopt a new rule titled §273.15 – Retired License for Volunteer Charity Care which previously was part of §273.7.

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Cancer Prevention and Research Institute of Texas

Proposed Rules Re:

Amending 25 TAC §701.3, which defines the “Grant Progress Report” and removing references to “goals and objectives.”

CHAPTER 701. POLICIES AND PROCEDURES
25 TAC §701.3

OVERVIEW

The Cancer Prevention and Research Institute of Texas (“CPRIT” or “the Institute”) proposes amending 25 Texas Administrative Code §701.3(29) relating to the definition of “Grant Progress Report” and §701.3(63) relating to the definition of “Scope of Work.”

BACKGROUND AND JUSTIFICATION

CPRIT proposes a change to §701.3(63) to amend the defined term, “Scope of Work,” to include “specific aims and subaims, if appropriate.” Grant applicants submit a Scope of Work with their grant application and, if approved, the Scope of Work becomes part of the grant contract. Currently, the term includes project goals, objectives, timelines and milestones; the proposed amendment would add “aims and subaims.” A Request for Applications will specify exactly what a grant applicant must submit to CPRIT, including goals and objectives or aims and subaims.

The proposed amendment to §701.3(29) that defines “Grant Progress Report” removes a reference to “goals and objectives” and replaces it with “Scope of Work” so that the term is used consistently throughout CPRIT’s administrative rules. The amendment does not substantively change the meaning of “Grant Progress Report.”

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Amending 25 TAC §§703.6, 703.7, 703.10, 703.21, 703.25, which will replace inconsistent goals and objectives pertaining to the Scope of Work.

CHAPTER 703. GRANTS FOR CANCER PREVENTION AND RESEARCH
25 TAC §§703.6, 703.7, 703.10, 703.21, 703.25

OVERVIEW

The Cancer Prevention and Research Institute of Texas (“CPRIT” or “the Institute”) proposes amending 25 Texas Administrative Code §§703.6, 703.7, 703.10, 703.21, and 703.25 to consistently use the term “Scope of Work” throughout the Chapter.

BACKGROUND AND JUSTIFICATION

Section 701.3 defines “Scope of Work” and currently includes the goals, objectives, timelines and milestones of a grant project. The proposed amendments to Chapter 703 replace inconsistent iterations of goals and objectives with the consistent use of Scope of Work. The proposed amendments do not change any substantive requirements in Chapter 703.

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Texas Health and Human Services Commission

Adopted Rules Re:

New 1 TAC §§353.1501 – 353.1506, concerning the establishment of policies and procedures that allow a Medicaid managed care organization (MCO) to conduct assessments and provide care coordination services using telecommunications and information technology.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER R. TELECOMMUNICATIONS IN MANAGED CARE SERVICE COORDINATION AND ASSESSMENTS
1 TAC §§353.1501 – 353.1506

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §353.1501, concerning Purpose; §353.1502, concerning Definitions; §353.1503, concerning Use of Telecommunications in Assessments; §353.1504, concerning Use of Telecommunications in Service Coordination and Service Management; §353.1505, concerning Additional Requirements for Assessments and Service Coordination in STAR+PLUS and STAR Kids; and §353.1506, concerning Additional Requirements for Assessments and Service Management.

Sections 353.1502 and 353.1504 are adopted without changes to the proposed text as published in the December 30, 2022, issue of the Texas Register (47 TexReg 8811). These rules will not be republished.

Sections 353.1501, 353.1503, 353.1505, and 353.1506 are adopted with changes to the proposed text as published in the December 30, 2022, issue of the Texas Register (47 TexReg 8811). These rules will be republished.

BACKGROUND AND JUSTIFICATION

The adopted rules are necessary to implement Texas Government Code, §533.039, added by House Bill (H.B.) 4, 87th Texas Legislature, Regular Session, 2021. Section 533.039 requires HHSC to adopt rules to establish policies and procedures that allow a Medicaid managed care organization (MCO) to conduct assessments and provide care coordination services using telecommunications and information technology (IT), to the extent permitted by federal law.

Assessments conducted for managed care members enrolled in a home and community-based services (HCBS) waiver or for services such as attendant care (i.e., personal assistance services and personal care services) and Community First Choice are not medical services. Assessments are performed by Medicaid MCOs. Federal law requires states to conduct annual assessments to determine eligibility for HCBS waivers. Assessments are also required to determine a member’s need for state plan services such as attendant care and Community First Choice.

HHSC consulted with the Centers for Medicare & Medicaid Services (CMS) for guidance related to the implementation of H.B. 4. CMS advised that HHSC must deploy an assessment method that is adequate to develop a person-centered plan that meets the requirements in Title 42 Code of Federal Regulations (42 CFR) §441.301(c)(2). CMS further advised that HHSC must meet the health and welfare assurances in 42 CFR §441.302 and determine if its assessment tools require in-person visual observations.

To implement Texas Government Code, §533.039, and to ensure compliance with federal regulations, the adopted rules: (1) establish requirements for the use of telecommunications in Medicaid managed care for service coordination and assessments conducted by MCOs that contract with HHSC; (2) require MCOs to conduct in-person initial assessments and annual reassessments using the HHSC-developed tools in STAR+PLUS, STAR Kids, and STAR Health, for waiver services and services requiring a functional assessment, such as personal assistance services, personal care services, and Community First Choice; (3) require a change in condition assessment that requires or potentially requires a change in the Resource Utilization Group (RUG) level to be conducted in person; (4) for change in condition assessments that do not require or potentially require a change in the RUG level, allow an MCO to offer members a choice of audio-visual communication in place of in-person, if the MCO obtains and documents member or member legally authorized representative (LAR) verbal consent; and (5) for limited circumstances, allow MCOs to submit, in a manner and format prescribed by HHSC, an exceptions policy for required in-person assessments for approval by HHSC.

In addition, the adopted rules: (1) allow an MCO to offer members in STAR+PLUS and STAR Kids a choice of audio-visual communication for service coordination in place of an in-person visit, if no assessment is occurring; (2) specify the requirements for audio-visual service coordination, including the responsibility of the MCO to obtain and document member or member LAR verbal consent for the use of audio-visual communication during a service coordination visit; (3) allow the STAR Health MCO to offer a choice of audio-visual or telephonic communication service management in place of an in-person visit if no assessment is occurring; (4) prohibit the use of IT, including text or email, as the sole means of conducting an assessment or service coordination, but allow their use to supplement audio-visual or in-person assessments and service coordination visits; (5) as outlined in Texas Government Code, §533.039, allow HHSC to require an MCO to discontinue service coordination or assessments using telecommunications on a case-by-case basis, if HHSC determines that the discontinuation is in the best interest of the member; (6) contain additional requirements related to assessments and service management in STAR Health, similar to the requirements for STAR+PLUS and STAR Kids; and (7) require an MCO to honor a member’s request in STAR+PLUS, STAR Kids, and STAR Health for in-person service coordination or assessments unless HHSC issues direction to MCOs during a declared state of disaster that service coordination or assessments must be conducted using audio-only communication or audio-visual communication.

In §353.1501, the adopted rules also establish July 1, 2023, as the MCO compliance date for the rules contained in Subchapter R to allow sufficient time for MCOs to implement the rules.

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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) adopts an amendment to 22 TAC §73.2 (Failure to Meet Continuing Education Requirements) without changes to the text as published in the March 10, 2023, issue of the Texas Register (48 TexReg 1400), and thus will not be republished. 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 received one comment concerning the amendment from the Texas Medical Association (TMA). TMA expressed concern that the amendment arguably could somehow be read as possibly precluding the Board from enforcing its continuing education requirements by any means other than through a random compliance audit.

While the Board appreciates TMA’s recommendation to rewrite the rule, the Board respectfully declines. Texas Occupations Code §201.501 (Disciplinary Powers of the Board) gives the Board the authority to discipline a licensee for any violation of Occupations Code Chapter 201 or rule adopted by the Board, which includes the Board’s continuing education rules in 22 TAC Chapter 73. This rule amendment does not alter that in the slightest.

The amended 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, and Texas Occupations Code §201.356, which authorizes the Board to adopt rules relating to licensee continuing education requirements.

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Proposed Rules Reviews Re:

Title 1, Part 15, concerning the Medicaid and Other Health and Human Services Fraud and Abuse Program.

OVERVIEW

The Texas Health and Human Services Commission (HHSC) proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 1, Part 15, of the Texas Administrative Code:

Chapter 371, Medicaid and Other Health and Human Services Fraud and Abuse Program

Subchapter B – Office of Inspector General

Subchapter C – Utilization Review

Subchapter E – Provider Disclosure and Screening

Subchapter F – Investigations

Subchapter G – Administrative Actions and Sanctions

This review is conducted in accordance with the requirements of Texas Government Code §2001.039, which requires state agencies, every four years, to assess whether the initial reasons for adopting a rule continue to exist. After reviewing its rules, the agency will readopt, readopt with amendments, or repeal its rules.

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In Addition Re:

Correction of Error, regarding an incorrect date for amendments to 26 TAC §745.475 and §745.477.

The Texas Health and Human Services Commission (HHSC) adopted amendments to 26 TAC §745.475 and §745.477 in the March 17, 2023, issue of the Texas Register (48 TexReg 1565). Due to an error by the Texas Register, the incorrect effective date was published for the adoption. The correct effective date for the adoption is March 27, 2023.

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Texas Department of State Health Services

In Addition Re:

May 2023, Retail Food Safety Operations, Food Establishments Group, Administrative Penalty Guidance

OVERVIEW

For more information, please visit this week’s edition of the Texas Register at 48 Tex Reg 2899.

According to Texas Health and Safety Code, §437.018, the Texas Department of State Health Services (department) may impose an administrative penalty against a person who holds a permit or is regulated under the Retail Food Establishment rules, Title 25, Texas Administrative Code, Chapter 228, or other rules or orders adopted under Texas Health and Safety Code, Chapter 437, concerning the Regulation of Food Service Establishments, Retail Food Stores, Mobile Food Units, and Roadside Food Vendors.

Descriptions are provided for administrative penalties that may be assessed pursuant to applicable law and rules, including Texas Health and Safety Code, §437.018 and Title 25, Texas Administrative Code, Chapter 229, §229.261(c) concerning Assessment of Administrative Penalties.

The department shall assess administrative penalties based upon one or more of the following criteria: (1) history of previous violations; (2) seriousness of the violation; (3) hazard to the health and safety of the public; (4) demonstrated good faith efforts to correct; (5) economic harm to property or the environment; (6) amounts necessary to deter future violations; (7) enforcement costs relating to the violation; and (8) any other matter justice may require.

The citations and examples provided are not exhaustive and are intended only to provide compliance guidance to licensees, and in no way restricts, limits, or may be considered a condition precedent to any proposed action the department may take for violations of the applicable law and rules. There is no significance to the order of the examples.

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Texas Medical Disclosure Panel

In Addition Re:

Correction of Error regarding the amendment to 25 TAC §601.9.

The Texas Medical Disclosure Panel (TMDP) adopted an amendment to 25 TAC §601.9 in the May 19, 2023, issue of the Texas Register (48 TexReg 2580).

Due to an error by TMDP, the incorrect form for 25 TAC §601.9(1) was published as part of the amendment. The revised form for §601.9(1) is being republished as follows.

For more information, please visit this week’s edition of the Texas Register at 48 Tex Reg 2907.

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