Texas Register April 2, 2021 Volume: 46 Number: 14

Governor

 

Appointments

Governor reappoints two members and appoints one new member to the Correctional Managed Health Care Committee

Appointments for March 17, 2021Appointed to the Correctional Managed Health Care Committee, for terms to expire February 1, 2025:John W. Burruss, M.D. of Dallas, Texas (Dr. Burruss is being reappointed);Diego De la Mora, M.D. of Horizon City, Texas (replacing Frank P. “Parker” Hudson, III, M.D. of Austin, whose term expired);Robert D. “Bobby” Greenberg, M.D. of Belton, Texas (Dr. Greenberg is being reappointed).

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Texas Health and Human Services Commission

Emergency Rule

New 26 TAC §500.1, allowing certain licensed hospitals to operate an off-site inpatient facility without obtaining a new license during the COVID-19 pandemic

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSINGSUBCHAPTER A. HOSPITALS26 TAC §500.1OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis new §500.1, Hospital Off-Site Facilities in Response to COVID-19, in Title 26, Texas Administrative Code, Chapter 500, concerning an emergency rule to allow hospitals to treat and house patients more effectively in response to COVID-19. RULE SUMMARY HHSC is adopting this emergency rule to allow a currently licensed hospital to operate an off-site inpatient facility without obtaining a new license at: (1) another type of facility currently licensed or licensed within the past 36 months or a facility pending licensure that has passed its final architectural review inspection, such as an ambulatory surgical center, an assisted living facility, a freestanding emergency medical care facility, an inpatient hospice unit, a mental hospital, or a nursing facility; (2) an outpatient facility operated by the hospital; (3) a formerly licensed hospital that closed within the past 36 months or a hospital pending licensure that has passed its final architectural review inspection; (4) a hospital exempt from licensure; and (5) a mobile, transportable, or relocatable unit.To allow operation of additional off-site facilities, this emergency rule also allows a waiver of the requirement for off-site facilities to be open or licensed within the past 36 months, at HHSC’s discretion.This emergency rule also temporarily permits a currently licensed hospital to designate a specific part of its hospital for use as an off-site facility by another hospital, and to allow another currently licensed hospital to apply to use the first hospital’s designated hospital space as an off-site facility for inpatient care.BACKGROUND AND JUSTIFICATION As authorized by Texas Government Code §2001.034, the Executive Commissioner 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.The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for Hospital Off-Site Facilities in Response to COVID-19.

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Texas Health and Human Services Commission

Emergency Rule

New 26 TAC §554.2803, allowing limited visitation in certain nursing facilities during the COVID-19 pandemic

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATIONSUBCHAPTER CC. COVID-19 EMERGENCY RULE26 TAC §554.2803OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Texas Administrative Code, Chapter 554, Nursing Facility Requirements for Licensure and Medicaid Certification, new §554.2803, concerning an emergency rule in response to COVID-19 describing requirements for limited indoor and outdoor visitation in a facility. HHSC is adopting this new emergency rule to allow limited indoor and outdoor visitation in a nursing facility. The purpose of the new rule is to describe the requirements related to such visits.BACKGROUND AND JUSTIFICATION As authorized by Texas Government Code §2001.034, the Commission 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.The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. This emergency rulemaking reflects the continued reopening of the State of Texas as well as the new requirements for visitation of nursing facility residents provided by the Centers for Medicare & Medicaid Services (CMS) in Memorandum QSO-20-39-NH, as revised March 10, 2021. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Nursing Facility COVID-19 Response – Expansion of Reopening Visitation.

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Texas Department on Aging and Disability Services

Emergency Rule

New 40 TAC §9.198 and §9.199, establishing requirements related to visitation, personnel, and day habilitation for the Community-Based Services (HCS) program in response to COVID-19

CHAPTER 9. INTELLECTUAL DISABILITY SERVICES–MEDICAID STATE OPERATING AGENCY RESPONSIBLITIESSUBCHAPTER D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)40 TAC §9.198, §9.199OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40, Part 1, Texas Administrative Code, Chapter 9, Intellectual Disability Services–Medicaid State Operating Agency Responsibilities, the following new emergency rules in response to COVID-19:§9.198 (Program Provider Response to COVID-19 Emergency Rule)§9.199 (HCS Provider Response to COVID-19-Expansion of Reopening Visitation)HHSC is adopting these emergency rules to reduce the risk of spreading COVID-19 to individuals in the HCS program. These new rules describe the requirements HCS program providers must immediately put into place and the requirements they must follow for visitation, essential caregivers, and day habilitation.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.The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of these Emergency Rules for Program Provider Response to COVID-19 and Home and Community-based Services (HCS) Expansion of Reopening Visitation.

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Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §353.2 to incorporate terminology related to foster care into the rules governing Medicaid Managed Care

CHAPTER 353. MEDICAID MANAGED CARESUBCHAPTER A. GENERAL PROVISIONS1 TAC §353.2OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.2, concerning Definitions related to Medicaid Managed Care. The proposed amendment to §353.2 adds definitions of “Adoption Assistance Program” and “Permanency Care Assistance Program” because these terms are used in the proposed amendments to §353.702 and §353.1203. The proposed amendment also adds a definition of “DFPS.” The agency is referenced in the new definitions of “Adoption Assistance Program” and “Permanency Care Assistance Program;” in the current definitions of “Former Foster Care Children Program,” “Medicaid for transitioning foster care youth program,” and “STAR Health;” and in §353.702(a)(1) and §353.1203(d)(5). The acronym improves the readability of those provisions.BACKGROUND AND JUSTIFICATION The proposed amendments are in response to Texas Government Code §533.00531, concerning Medicaid benefits for certain children formerly in foster care, which was added by House Bill (H.B.) 72, 86th Legislature, Regular Session, 2019. Section 533.00531 requires HHSC to allow the adoptive parent or permanent managing conservator of a child who participates in the Adoption Assistance (AA) Program or Permanency Care Assistance (PCA) Program operated by the Texas Department of Family and Protective Services, and is receiving Supplemental Security Income (SSI) or was receiving SSI before enrolling in the AA program or PCA program, to choose for the child to receive Medicaid benefits through the STAR Health program or the STAR Kids program, instead of being required to receive benefits through STAR Kids.The proposed amendments make changes to the eligibility criteria for the STAR Health and STAR Kids programs to implement the requirements of §533.00531. In addition, the proposed amendments allow children and young adults who participate in the AA Program or PCA Program and are enrolled in a Medicaid 1915(c) waiver or Medicare, to choose to receive benefits through the STAR Health program or the STAR Kids program, unless they are in a category that is specifically excluded from the STAR Kids program.

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Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §353.702 to make certain participants of the Adoption Assistance Program and Permanency Care Assistance Program eligible for the Medicaid Managed Care STAR Health Program

CHAPTER 353. MEDICAID MANAGED CARESUBCHAPTER H. STAR HEALTH1 TAC §353.702OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.702, concerning Star Health Member Participation. The proposed amendment to §353.702 adds certain children and young adults, from birth through the month of their 21st birthday, who are enrolled in the AA program or the PCA program to the categories of persons eligible for the STAR Health program. Specifically, the proposed amendment makes such a child or young adult eligible for the STAR Health program if the child or young adult is receiving SSI; was receiving SSI before becoming eligible for the AA program or the PCA program; is enrolled in a Medicaid 1915(c) waiver; or is enrolled in Medicare. Subsection (c)(5), which currently excludes children and youth who are receiving Medicaid benefits through the AA program from the STAR Health program, has been deleted because the proposed amendment to this section makes some of those children and young adults eligible for STAR Health. The proposed amendment also makes minor changes to subsection (a)(2) and (3) to clarify the age ranges of children and young adults who are eligible for the STAR Health program. The proposed amendment changes “and” to “or” in subsection (b) to clarify that a young adult must only be described in subsection (a)(2) or (3), not both, to be able to choose to transfer from the STAR Health program to the STAR program or STAR Kids program.BACKGROUND AND JUSTIFICATION The proposed amendments are in response to Texas Government Code §533.00531, concerning Medicaid benefits for certain children formerly in foster care, which was added by House Bill (H.B.) 72, 86th Legislature, Regular Session, 2019. Section 533.00531 requires HHSC to allow the adoptive parent or permanent managing conservator of a child who participates in the Adoption Assistance (AA) Program or Permanency Care Assistance (PCA) Program operated by the Texas Department of Family and Protective Services, and is receiving Supplemental Security Income (SSI) or was receiving SSI before enrolling in the AA program or PCA program, to choose for the child to receive Medicaid benefits through the STAR Health program or the STAR Kids program, instead of being required to receive benefits through STAR Kids.The proposed amendments make changes to the eligibility criteria for the STAR Health and STAR Kids programs to implement the requirements of §533.00531. In addition, the proposed amendments allow children and young adults who participate in the AA Program or PCA Program and are enrolled in a Medicaid 1915(c) waiver or Medicare, to choose to receive benefits through the STAR Health program or the STAR Kids program, unless they are in a category that is specifically excluded from the STAR Kids program.

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Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §353.1203 to make certain participants of the Adoption Assistance Program and Permanency Care Assistance Program eligible for the Medicaid Managed Care STAR Kids Program

CHAPTER 353. MEDICAID MANAGED CARESUBCHAPTER N. STAR KIDS1 TAC §353.1203OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.1203, concerning Star Kids Member Participation.The proposed amendment to §353.1203 adds the same categories of children and young adults to the eligibility categories for STAR Kids as the categories being added to §353.702 for STAR Health in new subsection (i). Subsection (h), which currently requires children and youth who are receiving Medicaid benefits through the AA program or the PCA program to enroll in STAR Kids if they meet the criteria described in subsections (a), (b), (c), or (e), has been deleted because the proposed new subsection (i) allows these children and young adults to have a choice of receiving benefits from the STAR Kids program or the STAR Health program. In addition, the proposed amendment changes the term “STAR Kids Medicaid client” to “STAR Kids member” in re-lettered subsection (h) because “member” refers to a person who is enrolled in a managed care program, which is appropriate in this context. The proposed amendment also makes minor changes to subsections (a), (b), (c), (f), and (g) to clarify the age ranges of children and young adults who are eligible for the STAR Kids program.BACKGROUND AND JUSTIFICATION The proposed amendments are in response to Texas Government Code §533.00531, concerning Medicaid benefits for certain children formerly in foster care, which was added by House Bill (H.B.) 72, 86th Legislature, Regular Session, 2019. Section 533.00531 requires HHSC to allow the adoptive parent or permanent managing conservator of a child who participates in the Adoption Assistance (AA) Program or Permanency Care Assistance (PCA) Program operated by the Texas Department of Family and Protective Services, and is receiving Supplemental Security Income (SSI) or was receiving SSI before enrolling in the AA program or PCA program, to choose for the child to receive Medicaid benefits through the STAR Health program or the STAR Kids program, instead of being required to receive benefits through STAR Kids.The proposed amendments make changes to the eligibility criteria for the STAR Health and STAR Kids programs to implement the requirements of §533.00531. In addition, the proposed amendments allow children and young adults who participate in the AA Program or PCA Program and are enrolled in a Medicaid 1915(c) waiver or Medicare, to choose to receive benefits through the STAR Health program or the STAR Kids program, unless they are in a category that is specifically excluded from the STAR Kids program.

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Texas State Board of Pharmacy

Proposed Rules

Amending 22 TAC §291.11 to clarify rules governing operations for all classes of pharmacies

CHAPTER 291. PHARMACIESSUBCHAPTER A. ALL CLASSES OF PHARMACIES22 TAC §291.11The Texas State Board of Pharmacy proposes amendments to §291.11, concerning Operation of a Pharmacy. The amendments, if adopted, correct citation references and a short title reference.

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Texas State Board of Pharmacy

Proposed Rules

Amending 22 TAC §291.34 to update record-keeping procedures for Class A pharmacies

CHAPTER 291. PHARMACIESSUBCHAPTER B. COMMUNITY PHARMACY (CLASS A)22 TAC §291.34The Texas State Board of Pharmacy proposes amendments to §291.34 concerning Records. The amendments, if adopted, clarify that a pharmacist may electronically sign the data entry attestation statement and update references to DEA 222 form requirements to be consistent with federal regulations.

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Texas State Board of Pharmacy

Proposed Rules

Amending 22 TAC §291.75 to update record-keeping procedures for Class C pharmacies

CHAPTER 291. PHARMACIESSUBCHAPTER D. INSTITUTIONAL PHARMACY (CLASS C)22 TAC §291.75The Texas State Board of Pharmacy proposes amendments to §291.75, concerning Records. The amendments, if adopted, will update references to DEA 222 form requirements to be consistent with federal regulations.

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Texas State Board of Pharmacy

Proposed Rules

Amending 22 TAC §291.76 to update record-keeping procedures for Class C pharmacies located in a freestanding Ambulatory Surgical Center

CHAPTER 291. PHARMACIESSUBCHAPTER D. INSTITUTIONAL PHARMACY (CLASS C)22 TAC §291.76The Texas State Board of Pharmacy proposes amendments to §291.76, concerning Class C Pharmacies Located in a Freestanding Ambulatory Surgical Center. The amendments, if adopted, update references to DEA 222 form requirements to be consistent with federal regulations.

Texas State Board of Pharmacy

Proposed Rules

Amending 22 TAC §315.3 to extend the expiration date for Schedule II prescriptions

CHAPTER 315. CONTROLLED SUBSTANCES22 TAC §315.3The Texas State Board of Pharmacy proposes amendments to §315.3 concerning Prescriptions. The amendments, if adopted, extend the time period for Schedule II prescriptions to be valid to no longer than 30 days to be consistent with federal law.

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Texas State Board of Pharmacy

Proposed Rules

Amending 22 TAC §315.5 to clarify the section title and extend the expiration date for Schedule II prescriptions

CHAPTER 315. CONTROLLED SUBSTANCES22 TAC §315.5The Texas State Board of Pharmacy proposes amendments to §315.5, concerning Pharmacy Responsibility – Generally – Effective September 1, 2016. The amendments, if adopted, remove the effective date from the short title and extend the time period for Schedule II prescriptions to be valid to no longer than 30 days to be consistent with federal law.

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Texas Health and Human Services Commission

Withdrawn Rule

Withdrawing 26 TAC §500.2, which allowed hospitals to waive certain operational requirements for emergency off-site facilities during the COVID-19 crisis

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSINGSUBCHAPTER A. HOSPITALS26 TAC §500.2OVERVIEWThe Health and Human Services Commission withdraws the emergency adoption of new §500.2, concerning Waiver of 36-Month Requirement During the COVID-19 Pandemic, which appeared in the October 9, 2020, issue of the Texas Register (45 TexReg 7086).HHSC previously adopted an emergency rule to allow a currently licensed hospital to operate an off-site inpatient facility without obtaining a new license. To allow operation of additional off-site facilities, this withdrawn rule would have allowed a waiver of the requirement for off-site facilities to be open or licensed within the past 36 months, at HHSC’s discretion.BACKGROUND OF WITHDRAWN RULEThe purpose of the emergency rulemaking was to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly found that an imminent peril to the public health, safety, and welfare of the state exists and required immediate adoption of this emergency rule for Waiver of 36-Month Requirement During the COVID-19 Pandemic.

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Texas Health and Human Services Commission

Withdrawn Rule

Withdrawing 26 TAC §500.3, which temporarily allowed a licensed hospital to designate a specific part of its hospital for use as an off-site facility by another hospital

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSINGSUBCHAPTER A. HOSPITALS26 TAC §500.3OVERVIEWThe Health and Human Services Commission withdraws the emergency rule §500.3, which appeared in the October 30, 2020, issue of the Texas Register (45 TexReg 7659).HHSC previously adopted this emergency rule to temporarily permit a currently licensed hospital to designate a specific part of its hospital for use as an off-site facility by another hospital, and to allow another currently licensed hospital to apply to use the first hospital’s designated hospital space as an off-site facility for inpatient care.BACKGROUND OF WITHDRAWN RULEThe purpose of the emergency rulemaking was to support the Governor’s March 13, 2020 proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly found that an imminent peril to the public health, safety, and welfare of the state required immediate adoption of this emergency rule for Designation of Licensed Hospital Space During the COVID-19 Pandemic.

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Texas Department of Insurance

Withdrawn Rule

Withdrawing the proposed repeal of 28 TAC §§3.8001 – 3.8030 and proposed new §3.8001, which would have updated chemical dependency treatment standards for health insurance purposes

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESSUBCHAPTER HH. STANDARDS FOR REASONABLE COST CONTROL AND UTILIZATION REVIEW FOR CHEMICAL DEPENDENCY TREATMENT CENTERS28 TAC §§3.8001 – 3.8005, 3.8007 – 3.8030OVERVIEWThe Texas Department of Insurance withdraws the proposed repeal of §§3.8001 – 3.8005, 3.8007 – 3.8030, which appeared in the September 25, 2020, issue of the Texas Register (45 TexReg 6684).The Department also withdraws proposed new §3.8001, which appeared in the September 25, 2020, issue of the Texas Register (45 TexReg 6684).New §3.8001 would have provided that insurers, other third-party reimbursement sources, and chemical dependency treatment providers must use the chemical dependency treatment standards in 25 TAC, Chapter 448, Subchapter I (relating to treatment program services).BACKGROUND OF WITHDRAWN RULE The proposed repeal of §§3.8001 – 3.8030 and proposed adoption of new §3.8001 implemented Insurance Code §1368.007. Section 1368.007 requires that TDI adopt by rule chemical dependency treatment standards for use by insurers, other third-party reimbursement sources, and chemical dependency treatment centers. These standards must provide for (1) reasonable control of costs necessary for inpatient and outpatient treatment of chemical dependency, including guidelines for treatment periods; and (2) appropriate utilization review of treatment, as well as necessary extensions of treatment.

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Texas Department of Insurance

Notices

Following official rule review, Division of Workers’ Compensation has readopted the rules located in 28 TAC, Chapters 140-156

Title 28, Part 2The Texas Department of Insurance, Division of Workers’ Compensation (DWC) completed its rule review of the following chapters located in 28 Texas Administrative Code and determined that the reasons for initially adopting the rules in these chapters continue to exist: Chapter 140 (DISPUTE RESOLUTION–GENERAL PROVISIONS)Chapter 141 (DISPUTE RESOLUTION–BENEFIT REVIEW CONFERENCE)Chapter 142 (DISPUTE RESOLUTION–BENEFIT CONTESTED CASE HEARING) Chapter 143 (DISPUTE RESOLUTION REVIEW BY THE APPEALS PANEL) Chapter 144 (DISPUTE RESOLUTION) Chapter 147 (DISPUTE RESOLUTION–AGREEMENTS, SETTLEMENTS, COMMUTATIONS) Chapter 148 (HEARINGS CONDUCTED BY THE STATE OFFICE OF ADMINISTRATIVE HEARINGS)Chapter 150 (REPRESENTATION OF PARTIES BEFORE THE AGENCY–QUALIFICATIONS FOR REPRESENTATIVES)Chapter 152 (ATTORNEY FEES) Chapter 156 (REPRESENTATION OF PARTIES BEFORE THE AGENCY–CARRIER’S AUSTIN REPRESENTATIVE) Notice of the review was published in the Texas Register on January 15, 2021 (46 TexReg 475).

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Texas Health and Human Services Commission

In Addition

HHSC will submit an amendment to update the fee schedules in the current Texas State Plan for Medical Assistance

OVERVIEWThe 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 are effective June 1, 2021.The purpose of this amendment is to update the fee schedules in the current state plan by adjusting a fee for service reimbursement rate for Non-Emergency Medical Transportation (NEMT) Services.ADDITIONAL INFORMATION Interested parties may obtain additional information and/or a free copy of the proposed amendments by contacting Cynthia Henderson, State Plan Policy Advisor, by mail. Relevant addresses are provided in this week’s edition of the Texas Register (46 Tex Reg 2261). To address the proposed rate changes, we will have a hearing to be held online prior to the effective date. Once available, information about the proposed rate changes and the hearing will be published in a subsequent issue of the Texas Register at http://www.sos.state.tx.us/texreg/index.shtml. PUBLIC COMMENT Written comments about the proposed amendments and/or requests to review comments may be sent by U.S. mail, overnight mail, special delivery mail, hand delivery, fax, or email. Relevant addresses are provided in this week’s edition of the Texas Register (46 Tex Reg 2261). 

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