Texas Register November 17, 2023 Volume: 48 Number: 46

Texas Register Table of Contents

1 Governor
- - 1.0.1 Appointments Re:
2 Texas Health and Human Services Commission
3 Texas State Board of Examiners of Professional Counselors
- - 3.0.1 Proposed Rules Re:
    - 3.0.1.1 Amending 22 TAC §681.72, to remove the requirement that an applicant must get a passing score on the NCE or NCMHCE within five years of the date of application.
4 Texas State Board of Social Worker Examiners
- - 4.0.1 Proposed Rules Re:
    - 4.0.1.1 Amending 22 TAC §781.323, to provide information on telehealth practice.
    - 4.0.1.2 Amending 22 TAC §781.412, to remove the requirement that an applicant must receive a passing score on the ASWB national examination within two years prior to the initial or upgrade application.
5 Texas Behavioral Health Executive Council
- - 5.0.1 Proposed Rules Re:
6 State Board of Dental Examiners
- - 6.0.1 Adopted Rules Re:
    - 6.0.1.1 Amending 22 TAC §102.1, to increase peer assistance fees for registered dental assistants.
  - 6.0.2 Proposed Rule Review Re:
    - 6.0.2.1 Reviewing Title 22, Part 5, to consider for re-adoption, revision, or repeal the chapters relating to Dental Hygiene Licensure and Continuing Education
7 Texas Board of Occupational Therapy Examiners
- - 7.0.1 Adopted Rules Re:

Governor

Appointments Re:

The Governor appointed one individual to the Texas Board of Medical Radiologic Technology.

Appointed to the Texas Board of Medical Radiologic Technology for a term to expire February 1, 2029, Melanie “Shannon” Lutz of Cypress, Texas.

The Governor appointed four individuals to the Texas State Board of Examiners of Professional Counselors.

Appointed to the Texas State Board of Examiners of Professional Counselors for a term to expire February 1, 2025:

Jennifer W. “Jenn” Winston of Lufkin, Texas;
Steven W. Hallbauer of Rockwall, Texas;
Roy L. Smith of Midland, Texas; and
Carolyn J. “Janie” Stubblefield of Dallas, Texas.

The Governor made several appointments to the Texas Health Services Advisory Board of Directors.

Appointed to the Texas Health Services Advisory Board of Directors for a term to expire June 15, 2025:

Victoria Ai Linh Bryant, Pharm.D., of Houston, Texas;
Shannon S. Calhoun of Goliad, Texas;
Salil Deshpande, M.D. of Houston, Texas;
Lacey P. Fails of Hollywood Park, Texas;
Kenneth S. James of Volente, Texas;
Kourtney R. Kouns of Seymour, Texas;
Jerome P. Lisk, M.D. of Lantana, Texas;
Leticia C. Rodriguez of Monahans, Texas;
Jonathan J. Sandstrom Hill of Lakeway, Texas;
Cynthia A. “Cindy” Stinson, Ph.D. of Lumberton, Texas;
Wesley J. “Wes” Tidwell of Round Rock, Texas; and
Carlos J. Vital of Friendswood, Texas.

Appointed as Ex-Officio Members to the Texas Health Services Advisory Board of Directors for a term to expire June 15, 2025:

Calvin J. Green of Elgin, Texas; and
Jeffrey W. “Jeff” Hoogheem of Killeen, Texas.

Texas Health and Human Services Commission

Proposed Rules Re:

Amending 1 TAC §353.1302, to make clarifying edits and add a new requirement for HHSC to remove an NF that undergoes a CHOW which changes the class of the facility during the program period.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES
1 TAC §353.1302

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §353.1302, concerning Quality Incentive Payment Program for Nursing Facilities on or after September 1, 2019.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to pursue modifications to the Quality Incentive Payment Program (QIPP) beginning in state fiscal year 2025 (i.e., September 1, 2024-August 31, 2025) to simplify the program structure; reduce the administrative burden of operating the program for HHSC and participating providers; and continue incentivizing Texas nursing facilities (NFs) to improve quality and innovation in the provision of services.

HHSC sought and received approval from the Centers for Medicare and Medicaid Services (CMS) to create QIPP in state fiscal year 2018. HHSC has not made modifications to the program since state fiscal year 2022. Directed payment programs authorized under 42 C.F.R. § 438.6(c) are expected to continue to evolve over time so that the program can continue to advance the quality goal or objective the program is intended to impact.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §353.1302(c)(1)(B) makes clarifying edits, moves examples of active partnership activities from subparagraph (B)(i) – (iii) to new subparagraph (E)(i) – (iii), and adds new subparagraphs (C) and (D) to provide further details concerning eligibility criteria for non-state government-owned NFs for different program periods.
The proposed amendment to §353.1302(g) makes clarifying edits in paragraphs (1), (2), (3), and (4), and revises the component funding allocations in paragraphs (1), (2), and (3).
The proposed amendment to §353.1302(h) makes clarifying edits in paragraph (1) related to the frequency of the distribution of QIPP payments.
The proposed amendment to §353.1302(i) adds new paragraph (3) that requires HHSC to remove an NF that undergoes a CHOW that changes the class of the facility during the program period, beginning in state fiscal year 2026 and renumbers paragraph (3).

Amending 1 TAC §353.1306, §353.1307, to add new reimbursement and payment information for Average Commercial Reimbursement (ACR), Upper Payment Limit (UPL) and pay-for-performance components.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES
1 TAC §353.1306, §353.1307

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.1306, concerning the Comprehensive Hospital Increase Reimbursement Program for program periods on or after September 1, 2021 and to §353.1307 concerning Quality Metrics for the Comprehensive Hospital Increase Reimbursement Program.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to pursue modifications to the Comprehensive Hospital Increase Reimbursement Program (CHIRP) payments beginning with the State Fiscal Year (SFY) 2025 rating period to promote the advancement of the quality goals and strategies the program is designed to advance.

HHSC sought and received authorization from the Centers for Medicare and Medicaid Services (CMS) to create CHIRP for SFY 2022 as part of the financial and quality transition from the Delivery System Reform Incentive Payment Program (DSRIP). One component of CHIRP existed as a stand-alone directed payment program for SFY 2018 – SFY 2021, but that component was fully folded into CHIRP beginning in SFY 2022. HHSC did not make significant modifications to CHIRP since its inception in SFY 2022. Directed payment programs authorized under 42 C.F.R. § 438.6(c), including CHIRP, are expected to continue to evolve over time so that the program can continue to advance the quality goal or objective the program is intended to impact.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §353.1306 introduces the APHRIQA as the third component of CHIRP for program periods beginning on after September 1, 2024.
The proposed amendments to subsection (b) adds new paragraph (2) to define the Average Commercial Reimbursement (ACR) Upper Payment Limit (UPL) and renumbers existing definitions accordingly.
The proposed amendments to subsection (c) update the Conditions of Participation to include description of the new optional pay-for-performance component as described in (g)(4).
The proposed amendments to subsections (d) and (e) update the language to include both percentage rate increases and other types of payments, such as pay-for-performance quality based payments, to the classes of participating hospitals and the eligibility requirements for participating hospitals.
The proposed amendments to subsection (g) more precisely describe the methodology for the ACIA component, contain the methodology for the new APHRIQA component, and include an update to a reference to subsection (h).
The proposed amendments to subsection (h) describe the distribution mechanics of the APHRIQA component payment.
The proposed amendments to subsections (j) – (l) renumber the subsections to subsections (i) – (k).
The proposed amendment adds a new subsection (l) that limits the review period for data or calculation corrections to the period of time before the first half of Intergovernmental Transfer (IGT) is required.
The proposed amendments to §353.1307 conform the rule to the new CHIRP pay-for-performance APHRIQA component and makes the language in this CHIRP quality rule more consistent with the language in the Quality Incentive Payment Program (QIPP) quality rule in §353.1304, another pay-for-performance directed payment program.
The proposed amendments to subsection (a) make the language more consistent with the QIPP quality rule.
The proposed amendments to subsection (b) delete terms that are not used in the rule.
The proposed amendments to subsection (c) make the language more consistent with the QIPP quality rule and provide that metrics may change from one program period to the next.
The proposed amendments add a new subsection (d) which specifies that achievement of performance requirements will trigger payments. The proposed amendment renumbers the remaining subsections in §353.1307 accordingly, given the addition of a new subsection (d).
The proposed amendments to subsection (f) (formerly §354.1307(e)) delete duplicative language that is included later in the rule and shorten the timeframe for participating hospitals to furnish information and data related to quality metrics and performance requirements that is requested by HHSC.
The proposed amendments to subsection (g) (formerly §354.1307(f)) change the dates by which the proposed metrics and performance requirements will be published to give participating hospitals more notice on what the measures and requirements may be.
The proposed amendments to subsection (h) (formerly §354.1307(g)) changes the dates by which the final metrics and performance requirements will be published to give participating hospitals more notice on what the final measures and requirements will be and authorizes HHSC to substitute measures for those suggested or published by HHSC if CMS requires the substituted measures.
The proposed amendments to subsection (i) make the language more consistent with the QIPP quality rule and clarify that CMS may require HHSC to substitute proposed measures with alternate measures for CMS to approve the program.

Amending 1 TAC §353.1309, to provide definitions and clarification for requirements for the Texas Incentives for Physicians and Professional Services (TIPPS) program.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES
1 TAC §353.1309

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §353.1309, concerning the Texas Incentives for Physicians and Professional Services.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to pursue modifications to the Texas Incentives for Physicians and Professional Services (TIPPS) program to simplify the program structure, provide additional details concerning certain enrollment-related processes and procedures, and reduce the administrative burden of operating the program for HHSC and participating providers.

HHSC sought and received authorization from the Centers for Medicare and Medicaid Services to create TIPPS for SFY 2022 as part of the financial and quality transition from the Delivery System Reform Incentive Payment (DSRIP) program. HHSC has not made significant modifications to TIPPS since its inception in SFY 2022.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §353.1309(b) provides additional definitions related to network status and plan code and reorganizes existing definitions to place all definitions in alphabetical order.
The proposed amendments to §353.1309(c) include definitions for minimum denominator requirements for program periods beginning on or after September 1, 2023, but on or after September 1, 2021, and then clarifies that no minimum denominator volume is required for program periods beginning on or after September 1, 2024, and after.
The proposed amendment to §353.1309(e) is expanded to clarify the program conditions of participation. First, the proposal clarifies that a provider must be located in the same SDA a participating SGE for each program period. Secondly, the proposal describes the manner in which network status will be determined during enrollment each year.
The proposed amendment to §353.1309(g) outlines the new structure of Components One and Two in SFY 2025, SFY 2026, and program periods subsequent to SFY 2026.
The proposed amendment to §353.1309(h)(1) explains the calculation and distribution of payments, after accounting for all other program changes.
Other revisions are made to numbering and editing for clarity and consistency.

Amending 1 TAC §353.1315, to add clarity and detail to the Rural Access to Primary and Preventive Services (RAPPS) program regarding the enrollment and timelines to provider information.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES
1 TAC §353.1315

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §353.1315, concerning the Rural Access to Primary and Preventive Services Program.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to pursue modifications to the Rural Access to Primary and Preventive Services (RAPPS) to simplify the program structure, provide additional details concerning certain enrollment-related processes and procedures, and reduce the administrative burden of operating the program for HHSC and participating providers.

HHSC sought and received authorization from the Centers for Medicare and Medicaid Services to create RAPPS for state fiscal year (SFY) 2022 as part of the financial and quality transition from the Delivery System Reform Incentive Payment program (DSRIP). HHSC has not made significant modifications to RAPPS since its inception in SFY 2022. Directed payment programs authorized under 42 C.F.R. §438.6(c), including RAPPS, are expected to continue to evolve over time so that the program can continue to advance the quality goal or objective the program is intended to impact.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §353.1315(b) amends terms “network RHC” to add a hyphen to a phrase and “rural health clinic” to add a section symbol.
The proposed amendment to §353.1315(e) corrects grammar, punctuation, and updates certain words for clarity.
The proposed amendment to §353.1315(f) adds subparagraph (A) and (B) to paragraph (1) to provide additional detail related to enrollment and timelines for updates to provider information
The proposed amendment to §353.1315(h) adds language to specify that the program will be consolidated to a single component paid via the scorecard for program periods beginning on or after September 1, 2024 and to clarify that the reconciliation will be based on actual utilization by National Provider Identifiers (NPI) and that an NPI that was not previously included in the monthly scorecard may be paid through the reconciliation.
The proposed amendment to §353.1315(i) adds language to further specify that modeling will be based on enrolled NPIs, and Component 2 will apply to program periods beginning on or before September 1, 2023. A reference is also updated.

Amending 1 TAC §353.1320, to add requirements for providers in the Directed Payment Program for the Behavioral Health Services (DPP BHS) program.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES
1 TAC §353.1320

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §353.1320, concerning the Directed Payment Program for Behavioral Health Services.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to pursue modifications to the Directed Payment Program for the Behavioral Health Services (DPP BHS) program to simplify the program structure, provide additional details concerning certain enrollment-related processes and procedures, and reduce the administrative burden of operating the program for HHSC and participating providers.

HHSC sought and received authorization from the Centers for Medicare and Medicaid Services to create DPP BHS for state fiscal year 2022 as part of the financial and quality transition from the Delivery System Reform Incentive Payment (DSRIP) program. HHSC has not made significant modifications to DPP BHS since its inception in state fiscal year 2022.

SECTION-BY-SECTION SUMMARY

The proposed amendment makes minor capitalization, typographical, and renumbering updates throughout.
The proposed amendment adds language to §353.1320(c)(1) to provide that for program periods beginning on or after September 1, 2024, all providers participating must be Certified Community Behavioral Health Clinics (CCBHC).
The proposed amendment adds language to existing §353.1320(e)(1), and adds new §353.1320(e)(3), to provide additional detail related to enrollment and timelines for updates to provider information and to clarify that providers must submit all claims under their own National Provider Identifier (NPI) as the billing provider.
The proposed amendment removes language from §353.1320(h) and adds language to §353.1320(h)(1)(A), §353.1320(h)(1)(D) and §353.1320(h)(2)(A) to specify that the program will be consolidated to a single component paid via the scorecard for program periods beginning on or after September 1, 2024, and to clarify that the reconciliation will be based on actual utilization by NPI and that an NPI that was not previously included in the monthly scorecard may be paid through the reconciliation.
The proposed amendment adds language to §353.1320(i)(1) to further specify that modeling will be based on enrolled NPIs and the MCO network status at the time of enrollment and that Component Two will apply only to program periods beginning on or before September 1, 2023.

Amending 1 TAC §354.2301, §354.2302, to update headings and add new definitions concerning Medicaid third party recovery.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER J. MEDICAID THIRD PARTY RECOVERY
1 TAC §354.2301, §354.2302

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, Subchapter J, concerning Medicaid Third Party Recovery, amendments to §§354.2301, 354.2302, 354.2311, 354.2313, 354.2315, 354.2321, 354.2322, 354.2331 – 354.2334, 354.2341, 354.2343, 354.2344, and 354.2354 – 354.2356.

BACKGROUND AND JUSTIFICATION

The federal Consolidated Appropriations Act of 2022 (H.R. 2471) amended §1902(a)(25)(I) of the Social Security Act to require a state plan for medical assistance to make certain assurances to the Secretary of Health and Human Services that state law imposes certain requirements on responsible third party health insurers.

Senate Bill (SB) 1342, 88th Legislature, Regular Session 2023, implemented H.R. 2471 by amending Texas Human Resources Code §32.0424. SB 1342 also repealed Texas Human Resources Code §32.042. Section 32.0424 requires a third party health insurer to: (i) provide certain insurance coverage information, upon timely request, to HHSC or HHSC’s designee; (ii) with some exceptions, accept authorization from HHSC or HHSC’s designee that an item or service is covered by Medicaid as if that authorization is a prior authorization made by the third party health insurer; and (iii) respond within 60 days to an inquiry from HHSC or HHSC’s designee regarding a claim for payment for health care submitted to the third party health insurer. Further, Texas Human Resources Code §32.0424 defines “third party health insurer” to mean a health insurer or other person or arrangement that is legally responsible by state or federal law or private agreement to pay some or all claims for health care items or services provided to an individual.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §354.2301, Basis and Purpose, replaces “chapter” with “subchapter,” replaces “Commission” with “HHSC,” corrects a federal law citation, and adds subsection (b), concerning the applicability of Subchapter J, by stating it applies to Medicaid fee-for-service and specifying the sections that apply to Medicaid managed care.
The proposed amendment to §354.2302, Definitions, replaces “chapter” with “subchapter” in the introductory sentence, replaces “the Commission” with “HHSC” in the proposed amendment of the definition of “Applicant,” and adds definitions for the following proposed new terms: “Capitation payment,” “Coinsurance,” “Copayment,” “Deductible,” “Designee,” “HHSC,” “Managed care organization (MCO),” “Medicaid,” and “Medicaid Benefits.” The proposed definition of “Dual Eligible” is amended to define it as “a recipient who has received, or is eligible to receive, benefits under both the Medicare and Medicaid programs.” The proposed amendment to the definition of “Dual Eligible” removes “for purposes of this section, a dually eligible recipient is one who has received, or is eligible to receive, benefits under both the Medicare and Medicaid programs.” Additionally, the proposed amendment to “Dual Eligible” renumbers it from twelve to seven. The proposed amendment to the definition of “Commissioner” adds “Executive” before the word “Commissioner,” replaces “&” with “and,” and is renumbered from two to eight. The proposed amendment to the definition of “Provider” replaces “the Commission or its designee” with “HHSC” and is renumbered from four to thirteen. The proposed amendment to the definition of “Recipient” removes “who has been certified as eligible to receive medical assistance from the” and “program by the Commission or other agency of the state” and adds “receiving benefits under” and “or CHIP.” Also, “Recipient” is renumbered from five to fourteen. The proposed amendment to “State Plan” renumbers the term from six to fifteen. The proposed definition of “Third party health insurer” is amended to align it with the definition in Texas Human Resources Code §32.0424(e) and renumbers the term from nine to sixteen. The proposed amendment adds “resource” after the existing defined term of “Third party,” and adds “entity,” “program,” and “including a third party health insurer, that” to the proposed amended definition of “Third party resource,” and is renumbered from seven to seventeen. The proposed amendment renumbers the term “Title IV-D agency” from ten to eighteen. The proposed amendment deletes existing terms and definitions for “Commission,” “Third party claim,” and “Plan administrator.”

Amending 1 TAC §§354.2311, 354.2313, 354.2315, to modify language in the current sections concerning Medicaid third party recovery.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER J. MEDICAID THIRD PARTY RECOVERY
1 TAC §§354.2311, 354.2313, 354.2315

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed amendment to §354.2311, Applicant and Recipient Assignment of Rights, replaces “the Commission” with “HHSC,” adds “any” before “payment,” replaces the phrase “for medical care from any third party health insurer or third party” with “from a third party resource,” replaces “the Commission’s” and “The Commission’s” with “HHSC’s,” adds “resource” after “third party” and removes “health insurer or third party,” adds subsection (d), which recognizes HHSC’s right to seek reimbursement from settlement amounts representing past or future payments for medical care under Gallardo v. Marstiller, 142 S. Ct. 1751 (2022), and renumbers the paragraphs to subsections (a) – (d). Along with these edits, editorial revisions are made to update numbering and references.
The proposed amendment to §354.2313, Duty of Applicant or Recipient to Inform and Cooperate, replaces “the Commission” with “HHSC;” replaces “medical” with “health care items or;” corrects a federal law citation by adding a section symbol; removes “health insurer or third party;” adds “resource” after “third party;” and updates a provision related to providing notice to HHSC by removing “to the telephone number and mailing address listed in Subchapter J Division 4,” adding “according to the provisions of,” and “subchapter (relating to Notices and Payments),” and removing “chapter for notices and Commission contact.” The proposed amendment also corrects a reference to the Code of Federal Regulations by removing “Part 232” and replacing it with “Chapter III,” replaces “the Commission’s” with “HHSC’s,” and replaces “medical” with “health care items or.” Along with these proposed amendments, grammatical and punctuation edits are also made.
The proposed amendment to §354.2315, Duty of Attorney or Representative of a Recipient, replaces “medical” with the phrase “health care items or;” replaces “the Commission” and “The Commission” with “HHSC;” adds “according,” “provisions of,” and “subchapter (relating to Notices and Payments),” and removes “chapter” and “for notices and Commission contact” to update the provision related to providing notice to HHSC; adds “resource” after “third party;” replaces “or third party health insurer” by adding “resource” after “third party;” corrects a federal law citation by adding a section symbol; and replaces “chapter” with “subchapter.”

Amending 1 TAC §354.2321, §354.2322, to delete phrases and replace current phrases in the sections regarding Provider Billing and Recovery from Other Third Parties,

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER J. MEDICAID THIRD PARTY RECOVERY
1 TAC §354.2321, §354.2322

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed amendment to §354.2321, Provider Billing and Recovery from Third Party Health Insurer, changes the heading by replacing “Health Insurer” with “Resources” after “Third Party.” The proposed amendment also replaces “health insurer” with “resource” after “third party,” adds “by,” removes “including examining the recipient’s Medicaid eligibility card for third party resources and,” replaces “oral or written inquiry of the recipient” with “attempt to verify with the recipient either orally or in writing,” replaces “the Commission” with “HHSC,” replaces “title” with “chapter,” and removes “Subchapter A, Division 1.” Further, the proposed amendment renumbers subsection (e) to add (e)(1) and (e)(2), to specify the different distribution procedures for fee-for-service and managed care when a provider receives payments from a third party resource but is limited to the Medicaid payable amount. The proposed amendment replaces “service” with the phrase “health care items or services.” Additionally, the proposed amendment adds a new subsection (i) to prohibit providers from refusing to provide health care items or services to a Medicaid recipient because the recipient has a third party resource that may be liable for payment. The proposed amendment also adds subsections (l) and (m). Subsection (l) establishes a two year deadline after which a payment made by a third party resource to HHSC or a provider on a claim for health care provided to a Medicaid recipient becomes final and describes the circumstances under which the claim is subject to adjustment after the claim becomes final. Subsection (m) provides the procedure and notice requirements for a third party resource seeking to recover an amount it overpaid on a claim for payment for health care provided to a Medicaid recipient. The proposed amendment renumbers subsection (i) to become subsection (j). Along with these edits, editorial revisions include grammatical and formatting edits, correcting punctuation, and updating numbering and references.
The proposed amendment to §354.2322, Provider Billing and Recovery from Other Third Parties, adds “Liable” to the heading before “Third Parties.” The proposed amendment also adds the phrase “health care items or” before “services,” deletes subsection (a)(1) relating to outdated language about examining a “Medicaid eligibility card,” replaces “the Commission” with “HHSC,” deletes “Subchapter A, Division 1,” replaces “title” with “chapter,” replaces “parties” with “party resources,” adds “resource” after “third party,” adds “require a refund to Medicaid or” after “not,” deletes “Subchapter J Division 4,” adds “(relating to Notices and Payments)” after “chapter,” and adds new subsection (l), which prohibits providers from refusing to provide health care items or services to a Medicaid recipient because the recipient has a third party resource that may be liable for payment. The proposed amendment also replaces “subsection” with “section.” Further, the proposed amendment renumbers subsection (a)(2) to become subsection (b). Along with these edits, changes are made to update references to the renumbered subsection and to correct grammar and punctuation.

Amending 1 TAC §§354.2331 – 354.2334, to update existing phrases and delete phrases in the sections.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER J. MEDICAID THIRD PARTY RECOVERY
1 TAC §§354.2331 – 354.2334

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed amendment to §354.2331, Requests for Information, replaces “the Commission” and “The Commission” with “HHSC,” replaces “chapter” with “subchapter,” corrects a federal law citation by adding a section symbol, removes “Subchapter J Division 4,” and replaces “title” with “subchapter.”
The proposed amendment to §354.2332, Distribution of Recoveries, adds the phrase “if cost effective” to subsection (a), replaces “The Commission” and “the Commission” with “HHSC,” replaces “the Commission’s” with “HHSC’s total,” replaces “Any” with “and any,” replaces “parties” with “party resources,” replaces “commissioner” with “Executive Commissioner,” removes Subchapter J Division 4, and replaces “title” with “division.” Along with these proposed amendments, grammatical edits are also made.
The proposed amendment to §354.2333, Waiver Authority of the Commissioner, replaces “commissioner” with “Executive Commissioner,” replaces “parties” with “party resources,” and replaces “the Commission’s” with “HHSC’s.”
The proposed amendment to §354.2334, Notices and Payments, replaces “the Commission” with “HHSC,” replaces “chapter” with “subchapter,” adds “by fax or mail,” removes “following address:” and “ATTN:,” replaces “Health & Human Services Commission” with “Medicaid claims administrator,” replaces “Liability, P.O. Box 13247, Austin, Texas 78711-3247, telephone 1-877-511-8858 or 512-482-3274” with “Liability/Tort division” after “Medicaid Third Party” and adds “Contact and address information for the Texas Medicaid claims administrator, Medicaid Third Party Liability/Tort division, can be found online in the Texas Medicaid Provider and Procedures Manual (TMPPM).”

Amending 1 TAC §§354.2341, 354.2343, 354.2344, to describe what is required by HHSC of a third party resource concerning payment for a Medicaid health care item or service provided by the Medicaid program.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER J. MEDICAID THIRD PARTY RECOVERY
1 TAC §§354.2341, 354.2343, 354.2344

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed amendment to §354.2341, Third Party Health Insurer Information Requirements, changes the heading title to add “Payment and” after “Health Insurer.” The proposed amendment also implements changes made to Texas Human Resources Code §32.0424 in SB 1342. The proposed amendment adds subsection (a), which requires a third party resource to accept HHSC’s right of recovery and assignment to the state of an individual or entity’s right to payment for a Medicaid health care item or service provided by the Medicaid program. The proposed amendment adds subsection (b), which sets a two-year deadline after which a payment made by a third party resource to HHSC or a provider on a claim for health care provided to a Medicaid recipient becomes final and describes the circumstances under which the claim is subject to adjustment after the claim becomes final. The proposed amendment deletes existing subsections (b) and (c) because those subsections were based on Texas Human Resources Code §32.042, which SB 1342 repealed. The proposed amendment requires a third party health insurer to: (i) upon request, provide certain insurance coverage information to HHSC on persons who may be, or may have been, covered by coverage issued by the health insurer; (ii) with the exception of certain hospital or Medicare benefits or specific insurance plans, accept authorization from HHSC that an item or service is covered by Medicaid as if that authorization is a prior authorization made by the third party health insurer; and (iii) respond within 60 days to an inquiry from HHSC regarding a claim for payment for health care submitted to a third party health insurer. Further, with the exception of certain hospitals, Medicare benefits, or specific insurance plans, the proposed amendment prohibits a third party health insurer from denying a timely claim from HHSC for failure to obtain prior authorization. The proposed amendment adds subsection (g), which prohibits a third party resource from denying a timely claim submitted by HHSC when the denial is based solely on the date of submission of the claim or the type or format of the claim form. The proposed amendment adds subsection (h), which describes HHSC’s right to appeal a third party resource’s denial of a claim for payment when such claim is denied based on reasons listed in subsection (g). Finally, the proposed amendments renumber subsection (a) to subsection (c) and subsection (b)(8) becomes subsection (d).
The proposed amendment to §354.2343, Administrative Penalties for Failure to Provide Information, replaces “the Commission” and “The Commission” with “HHSC,” replaces “The Commission’s” with “HHSC’s,” and provides that HHSC may impose administrative penalties on an insurer who fails to provide information requested by HHSC under §354.2341 within 180 days from the date of the request. The proposed amendment also removes subsections (a)(1) – (3). Grammatical edits are also made.
The proposed amendment to §354.2344, Notice and Appeal of Administrative Penalty, replaces “the Commission” and “The Commission” with “HHSC,” removes “will,” “letter,” and “[f]ormal.” The proposed amendment also adds “Texas” before “Government.” The proposed amendment also corrects a TAC rule citation by replacing “1” with the correct Chapter reference of “357, Subchapter I” and adding “Under the Administrative Procedure Act” after “Hearings” for the HHSC hearing rules. The proposed amendment also changes the numbering of the section by changing parts of subsection (a) to become subsection (b). Editorial edits include grammatical and punctuation changes, renumbering, and formatting changes.

Amending 1 TAC §§354.2354 – 354.2356, to describe when a health care service provider must first seek reimbursement from a third-party resource before billing Medicaid and to prohibit health care service providers from billing Medicaid recipients for copayments, deductibles, or coinsurance for Medicaid-covered services.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER J. MEDICAID THIRD PARTY RECOVERY
1 TAC §§354.2354 – 354.2356

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed amendment to §354.2354, Billing Medicare Intermediaries, replaces “The Commission” with “HHSC.”
The proposed amendment to §354.2355, Long Term Care Providers, adds the phrase “health care items or” before “services” and replaces “the Commission” with “HHSC.” Editorial edits include grammatical and formatting changes.
The proposed amendment to §354.2356, Provider Requirements to Bill Third Party Health Coverage, replaces “Third Party or Third Party Health Insurer” with “third party resource.” The proposed amendment requires a health care service provider to seek reimbursement from a third party resource before billing Medicaid, except for Medicaid programs and services that are required to be paid first prior to billing the third party resource. Proposed new subsection (b) prohibits providers from billing Medicaid recipients for copayments, deductibles, or coinsurance for Medicaid-covered services and describes the procedure and circumstances under which providers must bill Medicaid for reimbursement of the copayment, deductible, or coinsurance.

Adopted Rules Re:

Amending 1 TAC §355.8061, to implement an updated reimbursement methodology for outpatient hospitals.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
1 TAC §355.8061

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.8061, concerning Outpatient Hospital Reimbursement, §355.8121, concerning Reimbursement to Ambulatory Surgical Centers, §355.8610, concerning Reimbursement for Clinical Laboratory Service, and §355.8660, concerning Renal Dialysis Reimbursement.

The amendments are adopted without changes to the proposed text as published in the June 23, 2023, issue of the Texas Register (48 TexReg 3375). The rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments implement the outpatient prospective payment system (OPPS) reimbursement as required by Texas Government Code §536.005, (enacted in the 82nd Texas Legislature, 1st Called Session, 2011) which requires that HHSC “convert outpatient hospital reimbursement systems to an appropriate prospective payment system.” In addition, the 2014-15 General Appropriations Act, Senate Bill 1, 83rd Legislature, Regular Session, 2013 (Article II, HHSC, Rider 38) stated that “in order to ensure that access to emergency and outpatient services remain in rural parts of Texas, it is the intent of the Legislature that when HHSC changes its outpatient reimbursement methodology to a 3M(™) Enhanced Ambulatory Patient Groups (EAPG) or similar methodology, HHSC shall promulgate a separate or modified payment level for the above defined providers.” HHSC has been unable to implement EAPGs in the current Medicaid Management Information System (MMIS) without significant technology costs. Now that the agency is moving to a modernized MMIS, EAPGs are being implemented on the same timeframe. The contracts related to the modernized MMIS anticipated the new system would become operational on September 1, 2023, but the implementation date has been delayed and the OPPS transition to EAPGs is expected to occur in conjunction with the MMIS modernization implementation. At this time, the implementation is projected to occur on December 1, 2024. Public notices will be issued if there are changes to the implementation timeframe that result from additional modifications to contracts associated with the MMIS modernization implementation.

Amending 1 TAC §355.8121, to revise the name of the section from “Reimbursement” to “Reimbursement to Ambulatory Surgical Centers.”

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
1 TAC §355.8121

OVERVIEW

The amendments are adopted without changes to the proposed text as published in the June 23, 2023, issue of the Texas Register (48 TexReg 3375). The rules will not be republished.

BACKGROUND AND JUSTIFICATION

Amending 1 TAC §355.8610, to provide clarity on rules related to outpatient payment methodology by modifying and replacing certain terms concerning hospital laboratories for outpatients.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
1 TAC §355.8610

OVERVIEW

The amendments are adopted without changes to the proposed text as published in the June 23, 2023, issue of the Texas Register (48 TexReg 3375). The rules will not be republished.

BACKGROUND AND JUSTIFICATION

Amending 1 TAC §355.8660, to define the reimbursement process for outpatient renal dialysis centers.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
1 TAC §355.8660

OVERVIEW

The amendments are adopted without changes to the proposed text as published in the June 23, 2023, issue of the Texas Register (48 TexReg 3375). The rules will not be republished.

BACKGROUND AND JUSTIFICATION

Proposed Rule Reviews Re:

Reviewing Title 1, Part 15, to consider for readoption, revision, or repeal the chapter pertaining to the Disaster Assistance Program.

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 386, Disaster Assistance Program

Subchapter A General Information

Subchapter B Eligibility Criteria for Other Needs Assistance (ONA) Grants

Subchapter C Applying for An Other Needs Assistance Grant

Subchapter D Reconsideration and Appeals

Subchapter E National Flood Insurance Program (NFIP)

Reviewing Title 26, Part 1, to consider for readoption, revision, or repeal the chapter relating to Breast and Cervical Cancer Services.

Chapter 371, Breast and Cervical Cancer Services

In Addition Re:

Notice of Public Hearing on Proposed Rule Amendments for the Quality Incentive Payment Program, Comprehensive Hospital Increase Reimbursement Program, Texas Incentives for Physicians and Professional Services, Rural Access to Primary and Preventive Services Program, and Directed Payment Program for Behavioral Health Services

Hearing. The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on November 28, 2023, at 10:00 a.m., to receive public comments on proposed rule amendments to 1 Texas Administrative Code (1 TAC) §§353.1302, 353.1306, 353.1307, 353.1309, 353.1315, and 353.1320.

Texas State Board of Examiners of Professional Counselors

Proposed Rules Re:

Amending 22 TAC §681.72, to remove the requirement that an applicant must get a passing score on the NCE or NCMHCE within five years of the date of application.

CHAPTER 681. PROFESSIONAL COUNSELORS
SUBCHAPTER C. APPLICATION AND LICENSING
22 TAC §681.72

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §681.72, relating to Required Application Materials.

BACKGROUND AND JUSTIFICATION

The proposed amendments delete the requirement that an applicant must receive a passing score on either the NCE or NCMHCE within five years of the date of application. The licensure exams for other types of behavioral health licensees, such as psychologists and marriage and family therapists, do not have a time limit or expiration for their examination scores. Therefore, this five year expiration for a passing scores is being proposed to be deleted.

Texas State Board of Social Worker Examiners

Proposed Rules Re:

Amending 22 TAC §781.323, to provide information on telehealth practice.

CHAPTER 781. SOCIAL WORKER LICENSURE
SUBCHAPTER B. RULES OF PRACTICE
22 TAC §781.323

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §781.323, relating to Technology in Social Work Practice.

BACKGROUND AND JUSTIFICATION

The proposed amendments provide clarification regarding telehealth practice.

Amending 22 TAC §781.412, to remove the requirement that an applicant must receive a passing score on the ASWB national examination within two years prior to the initial or upgrade application.

CHAPTER 781. SOCIAL WORKER LICENSURE
SUBCHAPTER C. APPLICATION AND LICENSING
22 TAC §781.412

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §781.412, relating to Examination Requirement.

BACKGROUND AND JUSTIFICATION

The proposed amendments will eliminate the requirement that an applicant must receive a passing score on the ASWB national examination within two years prior to the initial or upgrade application. The rule as proposed will still require a passing score before the date of application, but examination scores older than two years will no longer expire for licensure purposes. The licensure exams for other types of behavioral health licensees, such as psychologists and marriage and family therapists, do not have a time limit or expiration for their examination scores. Therefore, this two year expiration for a passing scores is being proposed to be deleted.

Texas Behavioral Health Executive Council

Proposed Rules Re:

Amending 22 TAC §882.23, to provide clarification on when an individual is conducting a professional service in Texas.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER B. LICENSE
22 TAC §882.23

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §882.23, relating to License Required to Practice.

BACKGROUND AND JUSTIFICATION

The proposed amendments are intended to clarify when an individual is conducting a professional service in Texas, which is regulated by the Executive Council.

Amending 22 TAC §882.28, to add a process which updates the degree listed on a license.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER B. LICENSE
22 TAC §882.28

OVERVIEW

The Texas Behavioral Health Executive Council proposes new §882.28, relating to Update to Degree on a License.

BACKGROUND AND JUSTIFICATION

The proposed new rule implements a process to update the degree listed on a license.

Amending 22 TAC §883.1, to add the requirement that licenses which are selected for audit during renewal must obtain and sumbit a National Practitioner Data Base self-query.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER A. GENERAL PROVISIONS
22 TAC §883.1

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §883.1, relating to Renewal of a License.

BACKGROUND AND JUSTIFICATION

The proposed amendments require licensees selected for audit during renewal to obtain and submit a National Practitioner Data Base self-query. Current Council rule §882.2 requires new applicants to submit an NPDB self-query with their application, but currently there is no Council rule that requires licensees to submit an NPDB self-query. In a recent audit conducted by the State Auditor’s Office, the lack of any required NPDB self-query for licensure renewal was identified as an area of concern for the licensing functions of the Council. Section 507.258 of the Occupations Code requires the Council to establish a process to search a national practitioner database to determine whether another state has taken any disciplinary or other legal action against an applicant or license holder before issuing an initial or renewal license. Therefore, these rule amendments have been proposed to address this identified area of concern, and to further implement §507.258 of the Occupations Code.

Amending 22 TAC §884.1, to clarify that the rule of limitation for timeliness of a complaint does not apply to applications for reinstatement.

CHAPTER 884. COMPLAINTS AND ENFORCEMENT
SUBCHAPTER A. FILING A COMPLAINT
22 TAC §884.1

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §884.1, relating to Timeliness of Complaints.

BACKGROUND AND JUSTIFICATION

The proposed amendments provide notice and clarity that the rule of limitations for the timeliness of a complaint does not apply to applications for reinstatement.

Amending 22 TAC §885.1, to notify applicants and licensees that attempting to refund fees paid to the Council may result in potential disciplinary action.

CHAPTER 885. FEES
22 TAC §885.1

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §885.1, relating to Executive Council Fees.

BACKGROUND AND JUSTIFICATION

The proposed amendments provide additional notice to applicants and licensees of the potential disciplinary action that may result from attempting to refund fees paid to the Council. Additionally, a new rule has been proposed, §882.28, regarding updates to degrees on licenses, so a new fee of $54.00 has been proposed for these types of applications.

State Board of Dental Examiners

Adopted Rules Re:

Amending 22 TAC §102.1, to increase peer assistance fees for registered dental assistants.

CHAPTER 102. FEES
22 TAC §102.1

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §102.1, concerning fees, without changes to the proposed text as published in the September 29, 2023, issue of the Texas Register (48 TexReg 5615). The rule will not be republished. The adopted amendment increases the peer assistance fees for registered dental assistants to account for the increased peer assistance costs to the agency. Specifically, the adopted amendment increases the peer assistance fees by $1 for initial and renewal registered dental assistant applications.

Proposed Rule Review Re:

Reviewing Title 22, Part 5, to consider for re-adoption, revision, or repeal the chapters relating to Dental Hygiene Licensure and Continuing Education

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 103, Dental Hygiene Licensure

Chapter 104, Continuing Education

Texas Board of Occupational Therapy Examiners

Adopted Rules Re:

Amending 40 TAC §364.5, to make military service members eligible for the recognition of an out-of-state license.

CHAPTER 364. REQUIREMENTS FOR LICENSURE
40 TAC §364.5

OVERVIEW

The Texas Board of Occupational Therapy Examiners adopts amendments to 40 Texas Administrative Code §364.5, concerning Recognition of Out-of-State License of Military Spouse. The amendments add military service members to those eligible for the recognition of an out of state license and make further changes regarding the recognition pursuant to changes required by Senate Bill 422 of the 88th Regular Legislative Session. In addition, the amendments remove from the section information concerning an address of record pursuant to changes required by SB 510 of the 88th Regular Legislative Session. The amendments also include adding that individuals provide the Board phone number and mailing address information and update the Board of related changes and include further cleanups and/or clarifications. The amendments are adopted with changes to the proposed text as published in the September 1, 2023, issue of the Texas Register (48 TexReg 4784) and will be republished. The change upon adoption is to add to the section the following provision as the new subsection (i) of the section: “This section establishes requirements and procedures authorized or required by Chapter 55, Texas Occupations Code, and does not modify or alter rights that may be provided under federal law.” The addition will help ensure that the section will not be construed as modifying or altering other rights provided under federal law.

Amending 40 TAC §368.1, to update references and information pertaining to the setting of costs for the copying of records.

CHAPTER 368. OPEN RECORDS
40 TAC §368.1

OVERVIEW

The Texas Board of Occupational Therapy Examiners adopts amendments to 40 Texas Administrative Code §368.1, Open Records. The amendments concern updating the references in the section, including to update information regarding the setting of costs for the copying of records due to the abolishment of the General Services Commission. The amendments also clarify that state or federal statutes in addition to Texas Government Code Chapter 552 may affect the disclosure of certain information and add information regarding the use of a designee for the Executive Director, the agency’s open records coordinator. The amendments include further cleanups, including those concerning aligning the section with Texas Government Code Chapter 552. The amendments are adopted without changes to the proposed text as published in the September 1, 2023, issue of the Texas Register (48 TexReg 4786) and will not be republished.

Amending 40 TAC §369.2, to remove information regarding an address of record.

CHAPTER 369. DISPLAY OF LICENSES
40 TAC §369.2

OVERVIEW

The Texas Board of Occupational Therapy Examiners adopts amendments to 40 Texas Administrative Code §369.2, Changes of Name or Contact Information. The amendments concern removing from the section information concerning an address of record pursuant to changes required by Senate Bill 510 of the 88th Regular Legislative Session. The amendments are adopted without changes to the proposed text as published in the September 1, 2023, issue of the Texas Register (48 TexReg 4788) and will not be republished.

Amending 40 TAC §370.1, to remove an address of record pursuant to Senate Bill 510, which makes certain addresses confidential.

CHAPTER 370. LICENSE RENEWAL
40 TAC §370.1

OVERVIEW

The Texas Board of Occupational Therapy Examiners adopts amendments to 40 Texas Administrative Code §370.1. License Renewal. The amendments concern removing from the section information concerning an address of record pursuant to changes required by Senate Bill 510 of the 88th Regular Legislative Session. The amendments are adopted without changes to the proposed text as published in the September 1, 2023, issue of the Texas Register (48 TexReg 4789) and will not be republished.