Texas Register April 22, 2022 Volume: 47 Number: 16

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed seven individuals to the Advisory Council on Emergency Medical Services.
2 Health and Human Services Commission
- - 2.0.1 Emergency Rules Re:
    - 2.0.1.1 New 26 TAC §§500.41 – 500.44, concerning telemedicine and chemical dependency treatment facilities maximum caseloads.
    - 2.0.1.2 New 26 TAC §500.51, concerning supervision of licensed chemical dependency counselor interns through internet or telephone communications.
  - 2.0.2 In Addition Re:
3 Texas Behavioral Health Executive Council
- - 3.0.1 Proposed Rules Re:
4 Texas Department of Licensing and Regulation
- - 4.0.1 Adopted Rules Re:
5 Texas Board of Chiropractic Examiners
- - 5.0.1 In Addition Re:
    - 5.0.1.1 Comments and Responses to 22 TAC Sections 78.3 and 78.6
6 Department of State Health Services
- - 6.0.1 In Addition Re:
    - 6.0.1.1 Licensing Actions for Radioactive Materials

The Governor

Appointments Re:

The Governor appointed seven individuals to the Advisory Council on Emergency Medical Services.

Appointments for April 7, 2022

Appointed to the Advisory Council on Emergency Medical Services for a term to expire January 1, 2026:

Peter W. “Pete” Marocco of Dallas, Texas (replacing Darrin R. “Rudy” Rudolph of Longview, who resigned).

Appointed to the Advisory Council on Emergency Medical Services for a term to expire January 1, 2028:

Jeffrey H. “Jeff” Barnhart of Canyon, Texas (Mr. Barnhart is being reappointed).
Billy S. “Scott” Lail of Glen Rose, Texas (replacing Robert W Isbell. Jr. of Midland, whose term expired).
Ruben A. Martinez, Jr. of Concepcion, Texas (Mr. Martinez is being reappointed).
Ryan P. Matthews of Holliday, Texas (Mr. Matthews is being reappointed).
Daniel “Danny” Ramirez of San Juan, Texas (replacing Dudley D. Wait of Schertz, whose term expired).
Katherine E. “Kate” Remick, M.D. of Austin, Texas (replacing Robert M “Bob” Vezzetti. M.D. of Austin, whose term expired).

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §§500.41 – 500.44, concerning telemedicine and chemical dependency treatment facilities maximum caseloads.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER D. CHEMICAL DEPENDENCY TREATMENT FACILITIES
26 TAC §§500.41 – 500.44

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 500 COVID-19 Emergency Health Care Facility Licensing, new §500.41, concerning an emergency rule on telemedicine and telehealth in order to reduce the risk of transmission of COVID-19; new §500.42, concerning an emergency rule on maximum caseloads in order to permit an intensive residential program in a chemical dependency treatment facility (CDTF) to temporarily increase counselor caseloads to 20 clients per counselor; new §500.43, concerning an emergency rule on service delivery via two-way, real-time internet or telephone communications in order to reduce the risk of transmission of COVID-19; and new §500.44, concerning an emergency rule on treatment planning and service provision documentation deadlines in order to provide CDTFs additional time to document service delivery, as counselor caseloads may have increased in intensive residential treatment programs in response to the COVID-19 pandemic.

HHSC is adopting emergency rules to temporarily adjust CDTF operational requirements to: (1) permit a licensed CDTF to provide telehealth and telemedicine treatment services to clients in order to reduce the risk of transmission of COVID-19; (2) permit an intensive residential program in a CDTF to increase counselor caseloads from 10 to 20 clients per counselor due to CDTF staff shortages; (3) permit a licensed CDTF to provide treatment services through two-way, real-time internet or telephone communications to clients in order to reduce the risk of transmission of COVID-19; and (4) extend treatment planning and service provision documentation deadlines to provide CDTFs additional time to document service delivery, as counselor caseloads may have increased in intensive residential treatment programs. These emergency rules will address staff shortages, reduce the risk of transmission of COVID-19, and reduce barriers to treatment for patients seeking treatment for substance use disorders and chemical dependency.

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.

New 26 TAC §500.51, concerning supervision of licensed chemical dependency counselor interns through internet or telephone communications.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER E. LICENSED CHEMICAL DEPENDENCY COUNSELORS
26 TAC §500.51

OVERVIEW

HHSC is adopting an emergency rule to temporarily permit: (1) counselor interns with more than 1,000 hours of supervised work experience to provide services in person or through two-way, real-time internet or telephone communications; (2) supervisors of LCDC interns with less than 2,000 hours of supervised work experience to provide supervision in person or through two-way, real-time internet or telephone communications; and (3) a certified clinical supervisor, or the clinical training institution coordinator or intern’s supervising qualified credentialed counselor at a clinical training institution, to provide supervision to a counselor intern using two-way, real-time internet or telephone communications to observe and document the intern performing assigned activities and to provide and document one hour of face-to-face individual or group supervision. This emergency rule will address staff shortages, reduce the risk of transmission of COVID-19, and reduce barriers to treatment for patients seeking treatment for substance use disorders and chemical dependency.

BACKGROUND AND JUSTIFICATION

In Addition Re:

Notice of Public Hearing on Proposed Payment Rates for Financial Management Services Agency (FMSA) as part of the SFY 2022-23 Biennial Fee Review.

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on May 16, 2022, at 9:00 a.m. in the Public Hearing Room 125 of the John H. Winters Building, 701 W. 51st St., Austin, Texas 78751, to receive public comments on the proposed payment rates for the multiple Long-term Services and Supports (LTSS) programs.

BACKGROUND AND JUSTIFICATION

Increased payment rates are proposed for FMSA rates in Community Living Assistance & Support Services (CLASS), Community Care for Aged/Disabled (CCAD), Community Attendant Services (CAS), Family Care (FC), Primary Home Care (PHC), Consumer Managed Personal Attendant Services (CMPAS), Home and Community Based Services (HCBS), Texas Home Living (TxHmL), Deaf-Blind Multiple Disabilities (DBMD), Personal Care Services (PCS), STAR+PLUS, STAR Health, and STAR Kids as part of the state fiscal years 2022-23 Quarter 2 biennial fee review.

HHSC proposes to increase payment rates for FMSA services in the CLASS, CCAD, CAS, FC, PHC, CMPAS, HCBS, TxHmL, DBMD, PCS, STAR+PLUS, STAR Health, and STAR Kids programs, effective September 1, 2022.

The proposed payment rates for FMSA services were determined according to the rate-setting methodologies codified at 1 TAC Section 355.114.

HEARING DETAILS

This hearing will also be available online. To join the hearing from your computer, tablet, or smartphone, register for the hearing in advance using the following link: https://attendee.gotowebinar.com/register/787443162099286285, webinar ID: 501-375-475. After registering, you will receive a confirmation email containing information about joining the hearing. You can also dial in using your phone at (631) 992-3221, access code 955-766-486.

Notice of Public Hearing on Proposed Updates to Medicaid Payment Rates

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on May 16, 2022, at 9:00 a.m., to receive public comments on proposed updates to Medicaid payment rates resulting from Calendar Fee Reviews, Medical Policy Reviews, Healthcare Common Procedure Coding System HCPCS Reviews, and Special Policy Review.

HEARING DETAILS

Due to the declared state of disaster stemming from COVID-19, this hearing will be conducted both in-person and as an online event. To join the hearing from your computer, tablet, or smartphone, register for the hearing in advance using the following link:

Registration URL: https://attendee.gotowebinar.com/register/787443162099286285

Webinar ID: 501-375-475

Conference Number (for those who use phone Audio and not a computer): (631) 992-3221

Phone Audio Passcode: 955-766-486

Audio PIN: (Please note, in order to receive a PIN to speak, registration is required.)

The hearing will be held in compliance with Texas Human Resources Code §32.0282, which requires public notice of and hearings on proposed Medicaid reimbursements. A recording of the hearing will be archived and can be accessed on demand at https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings.

PROPOSAL DETAILS

The effective date of the proposed payment rates for the topics presented during the rate hearing will be as follows:

Effective January 1, 2022

HCPCS Review:

Surgery, Assistant Surgery Services – TOS 2 (Surgery Services), and TOS 8 (Assistant Surgery)

Effective June 1, 2022

Medical Policy Review:

Physician Administered Drugs: Zyvox (J2020)
Physician Administered Drugs: Anavip (J0841)

Effective September 1, 2022

Calendar fee Review:

Birthing Center
Cardiovascular System Surgery
Digestive System Surgery
G Codes (Acute Care)
G Codes (Hospitals)
K Codes
Nervous System Surgery
Physician Administered Drugs: NDCX
Physician Administered Drugs: Non-Oncology
Physician Administered Drugs: Oncology
Physician Administered Vaccines and Toxoids
Proton Therapy
Respiratory System Surgery
T Codes
Urinary System Surgery
Vision Devices
Personal Care Services

HCPCS Review:

Quarter 3 HCPCS Drugs
Quarter 4 HCPCS Drugs

Medical Policy Review:

Wound Care Management
Wound Care Skin Substitutes
Physician Administered Drugs: Ajovy (J3031)

Special Review:

Nuclear Medicine

BACKGROUND AND JUSTIFICATION

The proposed payment rates were calculated in accordance with Title 1 of the Texas Administrative Code:

Section §355.8021, Reimbursement Methodology for Home Health Services
Section §355.8085, Reimbursement Methodology for Physicians and Other Practitioners;
Section §355.8441, Reimbursement Methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services, also known as Texas Health Steps (THSteps) and the THSteps Comprehensive Care Program (CCP);
Section §355.8181, Reimbursement methodology for Birthing Center reimbursement;
Section §355.8061, Reimbursement for outpatient hospitals;
Section §355.8121, Reimbursement for ambulatory surgical centers; and
Section §355.8660, Reimbursement Methodology for Renal Dialysis.

Notice of Public Hearing on Revenue Code 881 for End-Stage Renal Disease (ESRD) Facility Reimbursement.

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing to receive comments regarding the Medical Policy Review of End Stage Renal Disease (ESRD) Facilities. HHSC proposes that, effective March 1, 2022, revenue code 881 will be a benefit of the Texas Medicaid Program. HHSC will hold the hearing on the proposal on May 16, 2022, at 9:00 a.m.

HHSC has added revenue code 881 to conform with medical policy for ESRD Facilities, effective March 1, 2022.

HEARING DETAILS

This public hearing will be held in compliance with Texas Human Resources Code §32.0282, which requires a public hearing on proposed payment adjustments. Due to the declared state of disaster stemming from COVID-19, this hearing will be conducted both in-person and as an online event. To join the hearing from your computer, tablet, or smartphone, register for the hearing in advance using the following link:

https://attendee.gotowebinar.com/register/787443162099286285

BACKGROUND AND JUSTIFICATION

Revenue code 881 was added as a benefit to comply with the associated ESRD medical policy, which requires provider notification.

Texas Behavioral Health Executive Council

Proposed Rules Re:

Amending 22 TAC §882.2 to reflect the agency’s ability to receive digitally certified self-query reports from the NPDB, rather than continuing to rely exclusively on self-query reports submitted by mail.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER A. LICENSE APPLICATIONS
22 TAC §882.2

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §882.2, relating to General Application File Requirements.

BACKGROUND AND JUSTIFICATION

Amending 22 TAC §882.22 to to reflect the agency’s ability to receive digitally certified self-query reports from the NPDB and clarify that only a full license can be reinstated, and a transitory license used to obtain required experience for full licensure cannot.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER B. LICENSE
22 TAC §882.22

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §882.22, relating to Reinstatement of a License.

BACKGROUND AND JUSTIFICATION

The proposed change is necessary to reflect the agency’s ability to receive digitally certified self-query reports from the NPDB, rather than continuing to rely exclusively on self-query reports submitted by mail. The proposed change also clarifies that only a full license can be reinstated, and a transitory license used to obtain required experience for full licensure cannot.

Amending 22 TAC §884.20 to correct a typographic error relating to Disciplinary Guidelines and General Schedule of Sanctions.

CHAPTER 884. COMPLAINTS AND ENFORCEMENT
SUBCHAPTER C. DISCIPLINARY GUIDELINES AND SCHEDULE OF SANCTIONS
22 TAC §884.20

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §884.20, relating to Disciplinary Guidelines and General Schedule of Sanctions.

BACKGROUND AND JUSTIFICATION

The proposed amendment is necessary to correct a typographical error in subsection (a)(4) of the rule.

Texas Department of Licensing and Regulation

Adopted Rules Re:

Repealing 16 TAC §§100.1, 100.10, 100.31, 100.50 to update requirements for health-related programs.

CHAPTER 100. GENERAL PROVISIONS FOR HEALTH-RELATED PROGRAMS
16 TAC §§100.1, 100.10, 100.31, 100.50

OVERVIEW

The Texas Commission of Licensing and Regulation (Commission) adopts the repeal of existing rules at §§100.1, 100.10, 100.31 and 100.50; new rules at 16 Texas Administrative Code (TAC) Chapter 100, §§100.1 – 100.3, 100.11, 100.60 – 100.65, and 100.70 – 100.72; amendments to existing rules at §§100.20, 100.30, and 100.40; and the addition of subchapter titles to an existing chapter, regarding General Provisions for Health-Related Programs, without changes to the proposed text as published in the January 28, 2022, issue of the Texas Register (47 TexReg 228). These repeals and rules will not be republished.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 100 implement Texas Occupations Code Chapter 51, General Provisions.

The adopted rules implement the provisions of Senate Bill (SB) 40, 87th Legislature, Regular Session (2021) and the provisions of Texas Occupations Code §51.501, as well as changes identified by the Texas Department of Licensing and Regulation (Department) as a result of the four-year rule review process conducted under Texas Government Code §2001.039. The adopted rules are necessary to provide guidelines to health professionals for the use of telehealth and remote continuing education, update rule provisions to reflect current Department procedures, amend outdated rule language, and relocate certain podiatry-specific provisions required by Texas Occupations Code §51.2032 to the podiatry chapter. This rulemaking was accompanied by another rulemaking related to 16 TAC Chapter 130, regarding the Podiatry program.

SECTION-BY-SECTION SUMMARY

The adopted rules create new Subchapter A, General Provisions.
The adopted rules repeal §100.1, Applicability, and replace it with a new §100.1. The adopted new rule amends the text of this rule to reflect the applicability of Chapter 100 as revised by this rulemaking.
The adopted rules adopt new §100.2, Definitions. The adopted rules adopt this rule text as a relocation of the existing §100.10, which is being repealed. The text is identical to the current §100.10.
The adopted rules adopt new §100.3, Administrative Penalties and Sanctions, outlining the enforcement authority of the Department for violations of the chapter.
The adopted rules repeal §100.10, Definitions, as the text is being relocated to the proposed §100.2 discussed above.
The adopted rules create new Subchapter B, Certain Health-Related Advisory Boards.
The adopted rules adopt new §100.11, Applicability, outlining the applicability of Subchapter B to certain health-related programs administered by the Department.
The adopted rules amend existing §100.20, Providing Information to Advisory Boards for Certain Health-Related Programs, to update language regarding citations to the Occupations Code and health “programs” instead of “professions.”
The adopted rules amend existing §100.30, Rules Regarding Certain Health-Related Programs, to update language regarding citations to the Occupations Code and remove references to an expiration date which is no longer in effect.
The adopted rules repeal existing §100.31, Rules Regarding the Podiatric Medicine Program. The provisions of this rule are being relocated to Chapter 130 of the Department’s rules in a concurrent rulemaking.
The adopted rules amend existing §100.40, Enforcement Procedures for Certain Health-Related Programs. The adopted rules add a citation for the rule’s authority, remove references to employees of the Department of State Health Services, add subsection (g) regarding the immunity of expert reviewers, and make clarifying changes to the structure of the rule.
The adopted rules repeal existing §100.50, Continuing Education Procedures for the Podiatric Medicine Program. The provisions of this rule are being relocated to Chapter 130 of the Department’s rules in a concurrent rulemaking.
The adopted rules create new Subsection C, Telehealth.
The adopted rules adopt new §100.60, Applicability, outlining the applicability of Subchapter C to the health-related programs administered by the Department under Title 3, Occupations Code.
The adopted rules adopt new §100.61, Definitions, providing definitions relevant for the provisions of Subchapter C.
The adopted rules adopt new §100.62, License Requirement, specifying the requirement for a license issued by the Department unless an exemption under other applicable law or rule applies.
The adopted rules adopt new §100.63, Standard of Care, establishing that a telehealth service is subject to the same standard of care as an in-person service and nothing in Subchapter C requires a higher standard of care or otherwise alters the applicable standard of care governing the treatment provided.
The adopted rules adopt new §100.64, Appropriate Client Care and Fraud Prevention, providing guidelines for health professionals providing telehealth services to ensure appropriate client care and fraud prevention.
The adopted rules adopt new §100.65, Client Privacy, requiring health professionals providing telehealth services to protect client privacy as required by federal and state law.
The adopted rules create new Subchapter D, Remote Continuing Education for Health Professionals.
The adopted rules adopt new §100.70, Applicability, outlining the applicability of Subchapter D to the health-related programs administered by the Department under Title 3, Occupations Code.
The adopted rules adopt new §100.71, Definitions, providing definitions relevant for the provisions of Subchapter D.
The adopted rules adopt new §100.72, Remote Continuing Education for Health Professionals, permitting use of remote continuing education if allowed by federal and state law and the Department rules governing the health professional’s licensure.

New 16 TAC §§100.1 – 100.3, replacing and updating general provisions for health-related programs.

CHAPTER 100. GENERAL PROVISIONS FOR HEALTH-RELATED PROGRAMS
SUBCHAPTER A. GENERAL PROVISIONS
16 TAC §§100.1 – 100.3

OVERVIEW

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 100 implement Texas Occupations Code Chapter 51, General Provisions.

SECTION-BY-SECTION SUMMARY

The adopted rules create new Subchapter A, General Provisions.
The adopted rules repeal §100.1, Applicability, and replace it with a new §100.1. The adopted new rule amends the text of this rule to reflect the applicability of Chapter 100 as revised by this rulemaking.
The adopted rules adopt new §100.2, Definitions. The adopted rules adopt this rule text as a relocation of the existing §100.10, which is being repealed. The text is identical to the current §100.10.
The adopted rules adopt new §100.3, Administrative Penalties and Sanctions, outlining the enforcement authority of the Department for violations of the chapter.

Amending 16 TAC §§100.20, 100.30, 100.40, and new §100.11, to outline requirements for certain health-related advisory boards.

CHAPTER 100. GENERAL PROVISIONS FOR HEALTH-RELATED PROGRAMS
SUBCHAPTER B. CERTAIN HEALTH-RELATED ADVISORY BOARDS
16 TAC §§100.11, 100.20, 100.30, 100.40

OVERVIEW

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 100 implement Texas Occupations Code Chapter 51, General Provisions.

SECTION-BY-SECTION SUMMARY

The adopted rules create new Subchapter B, Certain Health-Related Advisory Boards.
The adopted rules adopt new §100.11, Applicability, outlining the applicability of Subchapter B to certain health-related programs administered by the Department.
The adopted rules amend existing §100.20, Providing Information to Advisory Boards for Certain Health-Related Programs, to update language regarding citations to the Occupations Code and health “programs” instead of “professions.”
The adopted rules amend existing §100.30, Rules Regarding Certain Health-Related Programs, to update language regarding citations to the Occupations Code and remove references to an expiration date which is no longer in effect.
The adopted rules repeal existing §100.31, Rules Regarding the Podiatric Medicine Program. The provisions of this rule are being relocated to Chapter 130 of the Department’s rules in a concurrent rulemaking.
The adopted rules amend existing §100.40, Enforcement Procedures for Certain Health-Related Programs. The adopted rules add a citation for the rule’s authority, remove references to employees of the Department of State Health Services, add subsection (g) regarding the immunity of expert reviewers, and make clarifying changes to the structure of the rule.

New 16 TAC §§100.60 – 100.65, providing guidelines for the use of telehealth.

CHAPTER 100. GENERAL PROVISIONS FOR HEALTH-RELATED PROGRAMS
SUBCHAPTER C. TELEHEALTH
16 TAC §§100.60 – 100.65

OVERVIEW

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 100 implement Texas Occupations Code Chapter 51, General Provisions.

SECTION-BY-SECTION SUMMARY

The adopted rules create new Subsection C, Telehealth.
The adopted rules adopt new §100.60, Applicability, outlining the applicability of Subchapter C to the health-related programs administered by the Department under Title 3, Occupations Code.
The adopted rules adopt new §100.61, Definitions, providing definitions relevant for the provisions of Subchapter C.
The adopted rules adopt new §100.62, License Requirement, specifying the requirement for a license issued by the Department unless an exemption under other applicable law or rule applies.
The adopted rules adopt new §100.63, Standard of Care, establishing that a telehealth service is subject to the same standard of care as an in-person service and nothing in Subchapter C requires a higher standard of care or otherwise alters the applicable standard of care governing the treatment provided.
The adopted rules adopt new §100.64, Appropriate Client Care and Fraud Prevention, providing guidelines for health professionals providing telehealth services to ensure appropriate client care and fraud prevention.
The adopted rules adopt new §100.65, Client Privacy, requiring health professionals providing telehealth services to protect client privacy as required by federal and state law.

New 16 TAC §§100.70 – 100.72, detailing requirements for remote continuing education for health professionals.

CHAPTER 100. GENERAL PROVISIONS FOR HEALTH-RELATED PROGRAMS
SUBCHAPTER D. REMOTE CONTINUING EDUCATION FOR HEALTH PROFESSIONALS
16 TAC §§100.70 – 100.72

OVERVIEW

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 100 implement Texas Occupations Code Chapter 51, General Provisions.

SECTION-BY-SECTION SUMMARY

The adopted rules create new Subchapter D, Remote Continuing Education for Health Professionals.
The adopted rules adopt new §100.70, Applicability, outlining the applicability of Subchapter D to the health-related programs administered by the Department under Title 3, Occupations Code.
The adopted rules adopt new §100.71, Definitions, providing definitions relevant for the provisions of Subchapter D.
The adopted rules adopt new §100.72, Remote Continuing Education for Health Professionals, permitting use of remote continuing education if allowed by federal and state law and the Department rules governing the health professional’s licensure.

Texas Board of Chiropractic Examiners

In Addition Re:

Comments and Responses to 22 TAC Sections 78.3 and 78.6

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) submits the following miscellaneous document in order to cure defects with its posting of the adoption of 22 Texas Administrative Code (TAC) §78.3 and §78.6, as published in the March 18, 2022, issue of the Texas Register.

BACKGROUND AND JUSTIFICATION

At its February 24, 2022, meeting, the Texas Board of Chiropractic Examiners (Board) voted to adopt several rules proposed at the Board’s previous meeting. Those proposed rules were published in the December 10, 2021, issue of the Texas Register (46 TexReg 8300).

The rules adopted by the Board at the February 24 meeting were published in the March 18, 2022, issue of the Texas Register. Of those rulemaking adoptions, two were submitted with an incorrect preamble: New 22 TAC §78.3 (General Delegation of Responsibility) (47 TexReg 1455); and new 22 TAC §78.6 (Required Diligence in the Practice of Chiropractic) (47 TexReg 1456). The then-current 22 TAC §78.3 (General Delegation of Responsibility) (47 TexReg 1455) was also repealed at the same time.

The preambles for the new §78.3 and §78.6 failed to include comments the Board received regarding the rulemakings (as well as the Board’s responses to those comments) as required by Texas Government Code §2001.029. Those comments were presented to the Board for its review at its February 24 meeting. To cure this defect, the Board publishes those comments and the Board’s responses here.

DETAILS

Regarding new 22 TAC §78.3:

Comment: The Texas Medical Association (TMA) contends that subsection (c) of the new §78.3 does not clearly clarify the scope of practice by not adding “chiropractic” scope of practice as “defined by Texas law” to the text. The Board disagrees.

New subsection (c) states that “A licensee may delegate responsibility to a qualified individual to perform acts within the scope of practice, including: . . . .” The Board believes that no reasonable person (or licensee of the Board) would assume that the text refers to anything besides the chiropractic scope of practice.

The Board further believes that tacking on ” . . . defined by Texas law” adds nothing to the rule except excess words. Again, no reasonable person (or licensee) would assume that the Board was referring to anything but the scope of practice under Texas law.

Comment: TMA objects to the inclusion of “performing radiological procedures” in subsection (c) on two grounds, and asks that it be struck.

First, TMA objects that the rule does not delineate what type of radiological procedures may be delegated, because Texas Occupations Code §201.002(c)(3) excludes the use of x-ray therapy or therapy that exposes the body to radioactive materials from the scope of practice. As TMA notes, this sort of radiological procedure by a chiropractor is already prohibited by statute. As a rule cannot supersede a statute, the Board believes that simply repeating the statute text in this rule would add nothing but excess words. Further, for the convenience of our licensees, the Board has already consolidated all the statutory prohibitions on the scope of practice contained in Occupations Code Chapter 201 into 22 TAC §78.2 (Prohibitions on the Scope of Practice); adding it to §78.3 would be needlessly repetitive. The Board therefore declines TMA’s request.

Second, TMA objects that the new §78.3 is less detailed that the specific requirements for the delegation of radiologic procedures found in 22 TAC §78.5 (Delegation of Radiologic Procedures). TMA is correct, but only in the sense that §78.3 is a rule of general applicability governing the delegation of most chiropractic acts; it is not meant to cover all aspects of the delegation of radiological procedures. That is the purpose of §78.5. The Board has no doubt that its licensees who wish to delegate radiological procedures will find no confusion and will follow the specific requirements of §78.5. The Board declines TMA’s request.

TMA also argues that the general text regarding a chiropractor being on-site or on-call in subsection (g) of the new §78.3 conflicts with the specific requirements of §78.5 for the delegation of radiologic procedures. As said above, §78.3 is a rule of general applicability, while §78.5 governs the specific requirements for delegating radiological procedures, which includes a chiropractor being on-site. Assuming there is a conflict between the two, §78.5 governs. As the rule as published has already been adopted, the Board declines TMA’s request but will review the language in subsection (g) for a possible proposed amendment, if necessary, at a future Board meeting.

Regarding new 22 TAC §78.6:

Comment: TMA asserts the new §78.6 is vague and ambiguous. TMA specifically objects to subsection (a)(1), which states: “A licensee shall . . . conform to the generally accepted standards of practice of the chiropractic profession in Texas . . . .” TMA asks what the Board’s intent was by adding “in Texas” and requests the Board change that to “under Texas law.” The Board declines TMA’s request.

The Board believes there is nothing vague or ambiguous about the text. The Board believes TMA’s objection on this point is a distinction without a difference; the Board sees no articulated reason for a change in the text, just a conclusion. The Board further declines to entertain TMA’s request to clarify its intent. Intent is irrelevant; it is only to the text itself to which one may object.

Please direct any questions concerning this submission to the Board’s general counsel at christopher@tbce.texas.gov or (512) 305-6700.

Department of State Health Services

In Addition Re:

Licensing Actions for Radioactive Materials

OVERVIEW

During the first half of March 2022, the Department of State Health Services (Department) has taken actions regarding Licenses for the possession and use of radioactive materials as listed in the tables (in alphabetical order by location). The subheading “Location” indicates the city in which the radioactive material may be possessed and/or used. The location listing “Throughout TX [Texas]” indicates that the radioactive material may be used on a temporary basis at locations throughout the state.

BACKGROUND AND JUSTIFICATION

In issuing new licenses and amending and renewing existing licenses, the Department’s Business Filing and Verification Section has determined that the applicant has complied with the licensing requirements in Title 25 Texas Administrative Code (TAC), Chapter 289, for the noted action. In granting termination of licenses, the Department has determined that the licensee has complied with the applicable decommissioning requirements of 25 TAC, Chapter 289. In granting exemptions to the licensing requirements of Chapter 289, the Department has determined that the exemption is not prohibited by law and will not result in a significant risk to public health and safety and the environment.

A person affected by the actions published in this notice may request a hearing within 30 days of the publication date. A “person affected” is defined as a person who demonstrates that the person has suffered or will suffer actual injury or economic damage and, if the person is not a local government, is (a) a resident of a county, or a county adjacent to the county, in which radioactive material is or will be located, or (b) doing business or has a legal interest in land in the county or adjacent county. 25 TAC §289.205(b)(15); Health and Safety Code §401.003(15). Requests must be made in writing and should contain the words “hearing request,” the name and address of the person affected by the agency action, the name and license number of the entity that is the subject of the hearing request, a brief statement of how the person is affected by the action what the requestor seeks as the outcome of the hearing, and the name and address of the attorney if the requestor is represented by an attorney. Send hearing requests by mail to: Hearing Request, Radiation Material Licensing, MC 2835, PO Box 149347, Austin, Texas 78714-9347, or by fax to: 512-834-6690, or by e-mail to: RAMlicensing@dshs.texas.gov.