Texas Register April 8, 2022 Volume: 47 Number: 14

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed two new individuals to the Chronic Kidney Disease Task Force.
    - 1.0.1.2 The Governor issued Proclamation 41-3892 in response to the ongoing COVID-19 pandemic.
2 Health and Human Services Commission
3 Texas Department of Insurance
- - 3.0.1 Proposed Rules Re:
4 Texas Council for Developmental Disabilities
- - 4.0.1 Adopted Rules Re:
    - 4.0.1.1 Amending 40 TAC §876.9 to correctly identify the statute establishing charges for public records.
    - 4.0.1.2 Amending 40 TAC §§877.1, 877.2, 877.4 to clarify rules related to the Council Request for Applications and agency appeals process.

The Governor

Appointments Re:

The Governor appointed two new individuals to the Chronic Kidney Disease Task Force.

Appointments for March 30, 2022

Appointed to the Chronic Kidney Disease Task Force for a term to expire at the pleasure of the Governor:

Benedicta C. Anikputa of Austin, Texas (replacing Julie A. Llerena of Cedar Park).
Corey D. Ball, M.D. of Tyler, Texas (replacing Anilkumar T. “Anil” Mangla. Ph.D. of San Antonio).

The Governor issued Proclamation 41-3892 in response to the ongoing COVID-19 pandemic.

OVERVIEW

In accordance with the authority vested by Section 418.014 of the Texas Government Code, the Governor hereby renews the disaster proclamation for all counties in Texas.

BACKGROUND AND JUSTIFICATION

Pursuant to Section 418.017, the Governor authorizes the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.

Pursuant to Section 418.016, any regulatory statute prescribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforcement of any state statute or administrative rule regarding contracting or procurement would impede any state agency’s emergency response that is necessary to cope with this declared disaster, the Governor hereby suspends such statutes and rules for the duration of this declared disaster for that limited purpose.

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §500.20, allowing end stage renal disease (ESRD) facilities to treat and train dialysis patients more effectively during the COVID-19 pandemic.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER B. END STAGE RENAL DISEASE FACILITIES
26 TAC §500.20

OVERVIEW

The Executive Commissioner of the 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 §500.20, ESRD Off-Site Facilities During the COVID-19 Pandemic, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19. This emergency rule will allow end stage renal disease (ESRD) facilities to treat and train dialysis patients more effectively during the COVID-19 pandemic.

HHSC is adopting an emergency rule to allow a currently licensed ESRD facility to apply to operate an off-site outpatient facility without obtaining a new license at: (1) an ESRD facility that is no longer licensed that closed within the past 36 months; (2) a mobile, transportable, or relocatable medical unit; (3) a physician’s office; or (4) an ambulatory surgical center or freestanding emergency medical care facility that is no longer licensed that closed within the past 36 months.

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 exists and requires immediate adoption of this emergency rule for ESRD Off-Site Facilities During the COVID-19 Pandemic.

New 26 TAC §550.213, requiring prescribed pediatric extended care centers to develop and enforce policies and procedures for infection control.

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER C. GENERAL PROVISIONS
DIVISION 1. OPERATIONS AND SAFETY PROVISIONS
26 TAC §550.213

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 550, Licensing Standards for Prescribed Pediatric Extended Care Centers, Subchapter C, General Provisions, Division 1, Operations and Safety Provisions, new §550.213, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19.

HHSC is adopting an emergency rule to require prescribed pediatric extended care centers to develop and enforce policies and procedures for infection control.

BACKGROUND AND JUSTIFICATION

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 Prescribed Pediatric Extended Care Center Response to COVID-19–Screening and Infection Control Policies and Procedures.

New 26 TAC §554.2802, requiring nursing facilities to take certain actions to reduce the risk of spreading COVID-19 and to request temporary increases in capacity and Medicaid bed allocations.

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER CC. COVID-19 EMERGENCY RULE
26 TAC §554.2802

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 554, Nursing Facility Requirements for Licensure and Medicaid Certification, new §554.2802. This emergency rule is adopted in response to COVID-19 and requires nursing facilities to take certain actions to reduce the risk of spreading COVID-19. The emergency rule also permits nursing facilities to request temporary increases in capacity and Medicaid bed allocations to aid in preventing the transmission of COVID-19 or caring for residents with COVID-19.

HHSC is adopting an emergency rule to mitigate and contain COVID-19 and to permit a nursing facility to request a temporary increase in capacity or Medicaid bed allocation as part of the facility’s response to COVID-19. The purpose of the new rule is to describe the requirements nursing facility providers must immediately put into place to mitigate and contain COVID-19 and the procedures and criteria for requesting a temporary capacity increase or a temporary Medicaid bed allocation increase.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code §2001.034, HHSC may adopt an emergency rule without prior notice or hearing if it finds 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 Nursing Facility Response to COVID-19.

New 26 TAC §558.960, defining criteria for screening staff, clients, and household members for COVID-19.

CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
SUBCHAPTER I. RESPONSE TO COVID-19 AND PANDEMIC-LEVEL COMMUNICABLE DISEASE
26 TAC §558.960

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 558, Licensing Standards for Home and Community Support Services Agencies, new §558.960, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19.

HHSC is adopting an emergency rule to define criteria for screening staff, clients, and household members for COVID-19, to require that related documentation be made available to HHSC upon request, and to clarify that HCSSA staff must comply with a long-term care facility’s infection control protocols when entering to provide essential services.

BACKGROUND AND JUSTIFICATION

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 Nursing Facility Response to COVID-19.

New 26 TAC §559.65, requiring day activity and health services providers to develop and enforce policies and procedures for infection control.

CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
SUBCHAPTER D. LICENSURE AND PROGRAM REQUIREMENTS
26 TAC §559.65

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC or Commission) adopts on an emergency basis in Title 26, Texas Administrative Code, Chapter 559, Day Activity and Health Services Requirements, new §559.65, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19.

HHSC is adopting an emergency rule to require day activity and health services providers to develop and enforce policies and procedures for infection control.

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. 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 Day Activity and Health Services Response to COVID-19 – Screening, Activities and Infection Control Policies and Procedures.

Proposed Rules Re:

Amending 26 TAC §§556.2, 556.3, 556.5 – 556.13 to address the shortage of certified nurse aides by expanding the definition of a clinical site to allow certain health care facilities other than nursing facilities to serve as a NATCEP clinical site.

CHAPTER 556. NURSE AIDES
26 TAC §§556.2, 556.3, 556.5 – 556.13

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §556.2, concerning Definitions; §556.3, concerning Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements; §556.5, concerning Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements; §556.6, concerning Competency Evaluation Requirements; §556.7, concerning Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP); §556.8, concerning Withdrawal of Approval of a Nurse Aide Training and Competency Evaluation Program (NATCEP); §556.9, concerning Nurse Aide Registry and Renewal; §556.10, concerning Expiration of Active Status; §556.11, concerning Waiver, Reciprocity, and Exemption Requirements; §556.12, concerning Findings and Inquiries; and §556.13, concerning Alternate Licensing Requirements for Military Service Personnel.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to address the shortage of certified nurse aides by expanding the definition of a clinical site to allow certain health care facilities other than nursing facilities to serve as a NATCEP clinical site.

The proposed rules implement Texas Health and Safety Code, Chapter 250, Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly, Persons with Disabilities, or Persons with Terminal Illnesses, created by Senate Bill (S.B.) 1103, 87th Legislature, Regular Session, 2021. Chapter 250 states that nurse aides must be provided a certificate of registration to be placed on the Nurse Aide Registry.

SECTION-BY-SECTION SUMMARY

The proposed amendments to §556.2 change the definition of “facility” to expand the meaning of a clinical training site to include assisted living facilities, intermediate care facilities for individuals with an intellectual disability or related condition, hospitals, and special hospitals with long-term care acute facilities. The amendments also update the definition of “nurse aide” to include the phrase “who has been issued a certificate of registration” to comply with S.B. 1103 and the definition of “nurse aide training and competency evaluation program (NATCEP) application” to include the word “nursing” to the facility type.
The proposed amendments to §556.3 include the requirement that a nursing facility must participate in Medicare, Medicaid, or both to apply for approval to be a NATCEP. The proposed amendments require a clinical site to have all necessary equipment needed to practice and perform skills training; permit a NATCEP to offer clinical training hours in a laboratory setting under certain limited circumstances; and require that a clinical training provided by a NATCEP in a facility other than a nursing facility be provided under direct supervision of the NATCEP instructor and not delegated to other staff. A NATCEP using an assisted living facility or intermediate care facility for an individual with an intellectual disability or related condition as a clinical site may provide clinical training only in those services that are authorized to be provided under those facilities’ licenses. The proposed amendments also permit a nursing facility to request a waiver of a NATCEP prohibition related to a civil money penalty from the Centers for Medicare and Medicaid Services (CMS).
The proposed amendments to §556.5 add “nursing” next to facility throughout the section to specify that this subsection applies specifically to nursing facilities.
The proposed amendments to §556.6 correct the term “multiple choice” to “multiple-choice.” The amendments remove the word “must” and replace it with permissive language “may,” regarding the printing of written examination questions in a test booklet; provide the option of providing an online testing format as approved by HHSC; and include the issuance of a certificate of registration from HHSC upon a person’s successful completion of the competency evaluation to implement S.B. 1103.
The proposed amendment to §556.7 adds language referencing “the certificate of registration.”
The proposed amendments to §556.8 add “nursing” in front of the term facility to distinguish the type of facility the subsection applies to.
The proposed amendments to §556.9 add “nursing” in front of the term facility to distinguish the type of facility. The proposed amendments also add “certificate of registration” throughout the section, state that HHSC is the agency responsible for issuing a certificate of registration, and renumber the subsections accordingly.
The proposed amendments to §556.10 add language referencing the “certificate of registration” and change the title from “Expiration of Active Status” to “Expiration of the Certificate of Registration and Active Status.”
The proposed amendments to §556.11 add the “certificate of registration” throughout the section and “nursing” in front of the term facility to distinguish the type of facility the section applies to.
The proposed amendments to §556.12 add “nursing” in front of the term facility to distinguish the type of facility the section applies to. The amendments also clarify a reference and language regarding the certificate of registration and when HHSC revokes or suspends the certificate of registration.
The proposed amendments to §556.13 add the “certificate of registration.”

Adopted Rules Re:

Amending 1 TAC §355.8101 to clarify rules related to reimbursing covered telemedicine or telehealth medical service delivered by a health care provider to a Medicaid recipient at a Rural Health Clinic (RCH) facility.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 6. RURAL HEALTH CLINICS
1 TAC §355.8101

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.8101 concerning Rural Health Clinics Reimbursement. The amendment to §355.8101 is adopted without changes to the proposed text as published in the January 14, 2022, issue of the Texas Register (47 Tex Reg 78). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment to §355.8101 is adopted to comply with House Bill 4 (H.B. 4), 87th Legislature, Regular Session 2021, and to make other amendments to enhance clarity, consistency, and specificity. HHSC is required by H.B. 4 to ensure a Rural Health Clinic (RHC) is reimbursed for a covered telemedicine or telehealth medical service delivered by a health care provider to a Medicaid recipient at a RHC facility.

The adopted rule includes reformatted text for clarity and transparency in subsection (h) and subsection (l) with form updates in subsection (j). Additional clarifying updates are made to ensure consistency throughout the rule and that the rule appropriately describes current practices.

Adopted Rule Reviews

Reviewing Title 26, Part 1, Chapter 272 related to Transition Assistance Services.

OVERIVEW

The Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 26, Part 1, of the Texas Administrative Code:

Chapter 272, Transition Assistance Services

Subchapter A, Introduction
Subchapter B, TAS Provider Requirements
Subchapter C, Staff Requirements
Subchapter D, Service Delivery Requirements
Subchapter E, Claim Payments and Documentation

BACKGROUND AND JUSTIFICATION

Notice of the review of this chapter was published in the December 31, 2021, issue of the Texas Register (46 TexReg 9423). HHSC received no comments concerning this chapter.

HHSC has reviewed Chapter 272 in accordance with §2001.039 of the Government Code, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist. The agency determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 272. Any appropriate amendments to Chapter 272 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.

This concludes HHSC’s review of 26 TAC Chapter 272 as required by the Government Code, §2001.039.

In Addition Re:

Public Notice – Community Living Assistance and Support Services (CLASS) Program

OVERVIEW

The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the waiver application for the Community Living Assistance and Support Services (CLASS) Program. HHSC administers the CLASS Program under the authority of 1915(c) of the Social Security Act. CMS has approved this waiver through August 31, 2024. The proposed effective date for the amendment is August 31, 2022.

DETAILS

The request proposes to make the following changes:

Appendix B: Participant Access and Eligibility

HHSC increased the unduplicated number of participants (Factor C) and point-in-time (PIT) numbers for waiver years 3, 4, and 5.

Appendix C: Participant Services

HHSC clarified that supported employment is not available to individuals under a program funded under Section 110 of the Rehabilitation Act of 1973.

Appendix G: Participant Safeguards

HHSC removed the requirement for financial management services agencies and consumer directed services employers to attend training in person and will permanently allow them to attend the training online.

Appendix J: Cost Neutrality Demonstration

HHSC revised the unduplicated number of participants (Factor C) and PIT as well as the calculations for the overall projected cost of waiver services (Factor D) for waiver years 3, 4, and 5.

BACKGROUND AND JUSTIFICATION

The CLASS waiver program provides community-based services and supports to eligible individuals as an alternative to an intermediate care facility for individuals with intellectual disabilities. CLASS waiver services are intended to enhance an individual’s integration into the community, maintain or improve the individual’s independent functioning and quality of life, and prevent the individual’s admission to an institution. Services and supports supplement, rather than replace, existing informal or formal supports and resources.

Public Notice – DBMD Waiver Application

OVERVIEW

The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the waiver application for the Deaf Blind with Multiple Disabilities (DBMD) Program. HHSC administers the DBMD Program under the authority of Section 1915(c)of the Social Security Act. CMS has approved the DBMD waiver application through February 28, 2023. The proposed effective date for the amendment is September 1, 2022.

DETAILS

The request proposes to make the following changes:

Main Attachment #1: Transition Plan

HHSC included a transition plan to address the discontinuation of day habilitation after waiver year (WY) 5 and the implementation of individualized skills and socialization, a new service, to comply with the Home and Community-Based Services (HCBS) settings requirements.

Appendix C

HHSC added individualized skills and socialization and the service provider qualifications for the service.
HHSC clarified that supported employment is not available to individuals under a program funded under Section 110 of the Rehabilitation Act of 1973.

Appendix J

HHSC added individualized skills and socialization to the waiver service coverage charts and updated the projected utilization for day habilitation and individualized skills and socialization.

BACKGROUND AND JUSTIFICATION

The DBMD Program serves individuals with legal blindness, deafness, or a condition that leads to deaf blindness, and at least one additional disability that limits functional abilities. The program serves individuals in the community who would otherwise require care in an intermediate care facility for individuals with intellectual disability or a related condition.

Public Notice – Home and Community Based Services

OVERVIEW

The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the waiver application for the Home and Community-based Services (HCS) program. HHSC administers the HCS Program under the authority of Section 1915(c) of the Social Security Act. CMS has approved the HCS waiver application through August 31, 2023. The proposed effective date for this amendment is August 31, 2022.

DETAILS

This amendment request proposes to make the following changes:

Main Attachment #1 Transition Plan

HHSC included a transition plan to address the discontinuation of day habilitation during waiver year 5 and the implementation of individualized skills and socialization, a new service, to comply with the Home and Community-Based Services (HCBS) settings requirements.

Appendix B

HHSC updated waiver years 4 and 5 to reflect an increase in the Point-in-Time (PIT) and unduplicated participants (Factor C).

Appendix C

HHSC added individualized skills and socialization and the service provider qualifications for the service.
HHSC clarified that the amount allowed for repairs of minor home modifications will not count toward the $7,500 lifetime limit and is limited to $300 per service plan year per individual.
HHSC removed the following language from the service scope for day habilitation – “Day habilitation does not include services funded under section 110 of the Rehabilitation Act of 1973 or the Individuals with Disabilities Education Act (20 U.S.C. 1401 et seq.).”
HHSC clarified that supported employment is not available to individuals under a program funded under section 110 of the Rehabilitation Act of 1973.

Appendix D and Appendix G

HHSC clarified the settings for which HHSC conducts annual unannounced visits and that HHSC can conduct unannounced surveys for individuals in host home/companion care settings at any time.

Appendix I

HHSC changed the term “HHSC Rate Analysis” to “HHSC Provider Finance Department” and provided clarifying language for the individualized skills and socialization services projected costs.

Appendix J

HHSC revised the unduplicated number of participants (Factor C) and PIT calculations for the overall projected cost of waiver services (Factor D) and the overall projected cost of other Medicaid services furnished to waiver participants (D Prime (D’)) for the same waiver years. The updated projections in appendix J also include the addition of the individualized skills and socialization service and updated projections to discontinue day habilitation after waiver year (WY) 5 to comply with the HCBS settings requirements.

BACKGROUND AND JUSTIFICATION

The HCS waiver program provides services and supports to individuals with intellectual disabilities who live in their own homes, in the home of a family member, or another community setting such as a three-person or four-person residence operated by an HCS program provider. Services and supports are intended to enhance quality of life, functional independence, and health and well-being in continued community-based living and to supplement, rather than replace, existing informal or formal supports and resources. Services in the HCS waiver program include day habilitation, respite, supported employment, adaptive aids, audiology, occupational therapy, physical therapy, prescribed drugs, speech and language pathology, financial management services, support consultation, behavioral support, cognitive rehabilitation therapy, dental treatment, dietary services, employment assistance, minor home modifications, nursing, residential assistance, social work, supporting home living, and transition assistance services.

To obtain a free copy of the proposed waiver amendment, ask questions, obtain additional information, or submit comments about the amendment, please contact Basundhara Raychaudhuri by U.S. mail, telephone, fax, or email at the addresses and numbers below. A copy of the proposed waiver amendment may also be obtained online on the HHSC website at:

https://www.hhs.texas.gov/laws-regulations/policies-rules/waivers

Comments about the proposed waiver amendment must be submitted to HHSC by May 9, 2022.

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

OVERVIEW

The Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the Texas Healthcare Transformation and Quality Improvement Program (THTQIP) waiver under section 1115 of the Social Security Act. The current waiver is approved through September 2030. The proposed effective date for this amendment is September 22, 2022.

In response to House Bill 133, 87th Legislature, Regular Session, 2021, an amendment to the THTQIP 1115 waiver is needed to provide an additional four months of Medicaid eligibility to women receiving Medicaid at the time they deliver or experience an involuntary miscarriage, for a total of six months postpartum coverage.

This extension of postpartum coverage will have long-term benefits of improving continuity of care across a woman’s life cycle, increasing access to preventive health care, and positively affecting postpartum health outcomes and the outcomes of future pregnancies. This is consistent with the 1115 demonstration waiver goals of expanding risk-based managed care to new populations and services and improving outcomes.

PROPOSED CHANGES

Currently, pregnant women who are determined eligible for Medicaid are considered eligible until the end of the month in which their 60-day postpartum period ends. This waiver will not create a new eligibility category but will extend eligibility for pregnant women for an additional four months beyond the federally required postpartum period. This additional four months of eligibility will be provided to all women whose pregnancies end in a delivery or an involuntary miscarriage through the last day of the month in which the six-month postpartum period ends. If a woman’s pregnancy does not end in a delivery or an involuntary miscarriage, the woman will receive the postpartum coverage required by 42 CFR § 435.170(b) and (c).

REQUESTED WAIVERS

HHSC is requesting to waive § 1905(n) of the Social Security Act (Act) and 42 CFR § 435.4 to the extent necessary to allow the state to redefine “qualified pregnant woman or child” in the Act and “pregnant woman” in the CFR to change the postpartum period from 60 days to six months following delivery or involuntary miscarriage.
HHSC is requesting to waive 42 CFR § 440.210(a)(3) to the extent necessary to change the postpartum period from 60 days to six months following delivery or involuntary miscarriage.
HHSC is requesting to waive § 1902(e)(5) of the Act and 42 CFR § 435.170(b) and (c) to the extent necessary to allow the state to provide six months of extended and continuous eligibility following delivery or involuntary miscarriage.
HHSC is requesting to waive § 1902(a)(10)(B) of the Act, 42 CFR § 440.240 and 42 CFR § 440.250(p), related to comparability of services, to the extent necessary, as determined by CMS, allow the state to provide the additional four months of eligibility only to women whose pregnancies end in delivery or involuntary miscarriage.
HHSC is requesting to waive the requirement to conduct a redetermination of eligibility once every 12 months, as required by 42 CFR § 435.916 (a). With the additional four months of coverage, some women may receive Medicaid coverage for more than 12 months without an eligibility determination.

Texas Department of Insurance

Proposed Rules Re:

New 28 TAC §§3.501 – 3.507, establishing a rate review process for health benefit plans.

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIES
SUBCHAPTER F. RATE REVIEW FOR HEALTH BENEFIT PLANS
28 TAC §§3.501 – 3.507

OVERVIEW

The Texas Department of Insurance (TDI) proposes new Subchapter F, consisting of §§3.501 – 3.507, concerning the rate review process for individual and small group major medical coverage, to be added to 28 TAC Chapter 3. This new subchapter implements Insurance Code Chapter 1698, as added by Senate Bill 1296, 87th Legislature, 2021.

BACKGROUND AND JUSTIFICATION

Insurance Code Chapter 1698 requires the Commissioner to establish a process under which TDI will review health benefit plan rates and rate changes for compliance with state and federal law, including rules establishing geographic rating areas. Proposed Subchapter F establishes a process to review the rates for individual and small group major medical coverage as provided by Chapter 1698. The new subchapter includes §§3.501 – 3.507. These sections state the rule’s purpose and applicability, identify the rating standards, establish geographic rating areas, and provide guidance to address certain additional factors and requirements related to the review process and public disclosure requirements.

Federal law requires that federal regulators review certain health insurance rate increases if states do not do so. Prior to the passage of SB 1296, federal regulators have been reviewing these rates because Texas law had not provided a mechanism for state review since 2013. Insurance Code Chapter 1698 returns the rate review process to the state, consistent with federal rate review rules in 45 CFR Part 154.

TDI received five separate comments on an informal draft of this rule, which was posted on TDI’s website on October 19, 2021. Multiple commenters requested that the proposed new subchapter be drafted to include a common cost-sharing reduction (CSR) adjustment to address the federal government’s discontinuance of CSR reimbursements in 2017. Regulators in 45 states directed issuers to make this type of adjustment, commonly known as “actuarial loading” or “silver loading,” in response to the defunding of CSRs. TDI considered those comments when drafting this proposal.

SECTION-BY-SECTION SUMMARY

Section 3.501. Section 3.501(a) describes the purpose of the subchapter, which is to implement Insurance Code Chapter 1698 and establish an effective rate review program consistent with 45 CFR §154.301, concerning CMS’s Determinations of Effective Rate Review Programs.
Subsection (b) explains that the subchapter applies to plans subject to Insurance Code Chapter 1698, while subsection (c) clarifies that the subchapter does not apply to (1) short-term limited-duration insurance; (2) grandfathered health plan coverage; and (3) individual limited scope plans, including dental benefit plans and vision benefit plans. The plans listed under subsection (c) are not subject to the same federal rating standards and are reviewed instead for compliance with other existing state rating standards, including Insurance Code Chapter 560; Insurance Code Chapter 1501, Subchapter E; and 28 TAC §26.11.
Section 3.502. Section 3.502 defines the following terms for use in the subchapter: “actuarial value (AV),” “cost-sharing reductions (CSRs),” “essential health benefits (EHBs),” “federal medical loss ratio standard,” “HHS,” “issuer,” “index rate,” “plan,” “product,” “qualified actuary,” “single risk pool,” and “Unified Rate Review Template (URRT).”
Section 3.503. Section 3.503 requires that all rate filings under Subchapter F comply with all applicable state and federal requirements, including specified provisions from the Insurance Code, United States Code, and Code of Federal Regulations.
Section 3.504. Section 3.504 addresses how rates may vary based on geography. Insurance Code Chapter 1698 grants the Commissioner the authority to implement rules establishing geographic rating areas to use when reviewing the rates in compliance with 42 USC §300gg.
Subsection (a) provides that issuers may vary the rates based on rating areas, which are determined using the policyholder’s or contract holder’s address.
Subsection (b) establishes 27 rating areas that issuers must use for rates, beginning in 2023. Each rating area consists of a certain number of Texas counties in compliance with 45 CFR §147.102(b)(3). Currently, Texas uses the federal default rating areas, composed of 25 Metropolitan Statistical Areas and one area that includes all rural areas. The proposed new rating areas are based around health care districts and the regions defined by the Texas Health and Human Services Commission. The newly established rating areas could have a positive effect on rural communities by generating competition in areas where a limited variety of health plans is currently available.
Section 3.505. Section 3.505(a) prohibits an issuer from using a rate with respect to a plan if the rate has not been filed with TDI for review, does not comply with applicable rating standards, or where the rate filing has been withdrawn.
Subsection (b) requires that issuers submit an annual rate filing no later than June 15 for any individual or small group market plan that is to be issued on or after January 1 in the following calendar year. Subsection (b) also prohibits an issuer from modifying an annual rate filing later than October 1 prior to the calendar year for which the filing was submitted.
Subsection (c) applies only to small group issuers and allows them to submit a rate filing for a quarterly rate change so long as the filing is submitted at least 105 days before the effective date of the rate change.
Subsection (d) requires that rate filings include the index rate for the single risk pool and reflect every product and plan that is part of the single risk pool in the applicable market. Subsection (d) also advises that issuers are not required to enter CSR plan variations separately.
Subsection (e) requires issuers to submit rate filings under Subchapter F through the electronic system designated by TDI in accordance with any technical instructions provided for the electronic system. The electronic system currently in use is the System for Electronic Rate and Form Filings (SERFF); additional technical guidance on filing is contained in TDI rules in 28 TAC Chapter 3, Subchapter A, and in 28 TAC §11.301.
Subsection (f) requires that rate filings made under Subchapter F include the following: (1) the URRT (Part I); (2) written descriptions justifying rate increases of 15% or more in a 12-month period; (3) rating filing documentation, including an actuarial memorandum signed by a qualified actuary; (4) a rates table that identifies the applicable rate for each plan depending on an individual’s rating area, tobacco use, and age; (5) an enrollment spreadsheet that contains the information specified in subparagraphs (A) through (C) of the paragraph; and (6) an actuarial value (AV) and cost-sharing factor spreadsheet.
The AV and cost-sharing factor spreadsheet included with each rate filing must include a certain induced-demand factor based on the plan type (e.g., bronze plans, silver plans, gold plans, and platinum plans). The spreadsheet must also include a CSR adjustment factor of 1.35, which is applicable to individual silver plans on the exchange. In setting this factor, TDI considered the different CSR plan variations with respect to (1) the eligibility criteria for CSRs; (2) the potential distribution of enrollees; (3) the maximum actuarial value that may be provided across all silver plans; and (4) variation in induced demand. Before adopting a final CSR adjustment factor, TDI will consider comments on the proposed factor and whether it should be modified.
Subsection (g) states that TDI will publish templates on its website that issuers may use to submit the required data.
Subsection (h) requires that an issuer provide any additional information needed to evaluate the rate filing upon TDI’s request.
Subsection (i) requires an issuer to submit current and prior year data on enrollment, premiums, and claims by June 15, when the issuer does not intend to issue a plan that would require a rate filing for the next calendar year but has enrollment in a plan that is subject to Subchapter F in the current or prior year. This data enables TDI to consider medical claims trends and understand the impact of a change to an issuer’s market participation.
Section 3.506. Section 3.506(a) provides that TDI will evaluate whether the issuer has provided sufficient data and documentation upon receipt of a rate filing under Subchapter F and may request additional information as necessary to make a determination on the filing. The issuer must provide any additional information requested within 10 business days of the request. If TDI requests additional information but the issuer fails to provide the requested information or establish a plan to provide the information that is acceptable to TDI, TDI will deem the filing withdrawn and notify the issuer of the withdrawal.
Subsections (b) and (c) explain the factors TDI will review, which include (1) the reasonableness of the assumptions used by the issuer to develop the rates and the validity of the historical data underlying the assumptions; (2) the issuer’s data related to past projections and actual experience; (3) the reasonableness of assumptions used by the issuer to estimate the rate impact of the reinsurance and risk adjustment programs; (4) the issuer’s data related to implementation and ongoing utilization of certain factors as required by 42 USC Subchapter XXV, Part A, concerning Individual and Group Market Reforms; (5) factors specified under the Insurance Code; (6) factors listed under 45 CFR §154.301(a)(4); and (7) whether the issuer complies with rating standards under §3.503.
Subsection (d) provides that TDI will also consider the factors from Insurance Code §1698.052(c) when reviewing rates for a qualified health plan. Those factors include:

the purchasing power of consumers who are eligible for a premium subsidy under federal law;
if the plan is in the silver level, whether the rate is appropriate in relation to the rates charged for qualified health plans offering different levels of coverage, accounting for any funding or lack of funding for CSRs and the covered benefits for each level of coverage; and
whether the plan issuer used the induced-demand factors developed by the Centers for Medicare and Medicaid Services (CMS) for the level of coverage offered by the plan or any state-specific induced-demand factors established by TDI.

Subsection (e) provides that the standard for determining that a rate increase is unreasonable is whether the rate is excessive, unjustified, or unfairly discriminatory. Subsection (e)(1) explains that a rate filing is excessive if it causes the premium charged for the health insurance coverage to be unreasonably high in relation to the benefits provided under the coverage.
Subsection (e)(2) explains that a rate increase is unjustified if the issuer provides incomplete or inadequate information or otherwise does not provide a basis for TDI to determine the reasonableness of the rate increase.
Subsection (e)(3) explains that a rate increase is unfairly discriminatory based on Insurance Code §560.002(c), which provides that a rate is unfairly discriminatory if it is not based on sound actuarial principles; does not bear a reasonable relationship to the expected loss and expense experience among risks; or is based wholly or partly on the race, creed, color, ethnicity, or national origin of the policyholder or insured.
Subsection (f) provides that a rate will be deemed compliant at the expiration of 60 days from the date the rate is filed, unless the filing is withdrawn or TDI has determined that the rate is noncompliant or granted an extension. If TDI has not finalized its determination before the 60th day, TDI may extend the period by up to 10 days, with notice to the issuer. The issuer may also extend the time frame for review or waive the right to deem the rate compliant.
Subsection (g) provides that TDI will identify deficiencies for any rate filing that does not comply with the applicable rating standards and ask for corrections. If the issuer fails to make the necessary corrections within 10 business days or establish a plan that is acceptable to TDI to address the identified deficiencies, the filing will be determined to be noncompliant and TDI will notify the issuer of the determination.
Subsection (h) explains that TDI will communicate objections to a rate increase and give the issuer an opportunity to provide additional information or modify the filing prior to TDI determining that the rate increase is unreasonable. Subsection (h) also describes what will happen when TDI determines that a rate increase is unreasonable but that the issuer is legally permitted to implement the rate increase. In this case, TDI will issue a final determination and brief explanation. After receipt of this, the issuer is required to submit a final justification for the rate increase and prominently post information concerning the rate increase on its website, consistent with 45 CFR §154.230, which requires that the issuer keep the posting on its website for at least three years.
Section 3.507. Section 3.507 addresses the public disclosure and comments information related to rate increases, consistent with 45 CFR §154.301(b). Subsection (a) provides that information related to a proposed annual rate increase of 15% or more will be made publicly available on a website published by CMS.
Subsection (b) supplies the TDI email address to which public comments concerning proposed rate increases may be sent.
Subsection (c) states that final rate increases will be publicly available on a website published by CMS no later than the first day of the annual open enrollment period in the individual market for the applicable calendar year.
Subsection (d) provides that TDI will make information related to proposed or final rate filings publicly available in a manner consistent with federal law.

Amending 28 TAC §12.4 to update rules related to independent review organizations and provide consistency with current agency language preferences and drafting practices.

CHAPTER 12. INDEPENDENT REVIEW ORGANIZATIONS
SUBCHAPTER A. GENERAL PROVISIONS
28 TAC §12.4

OVERVIEW

The Texas Department of Insurance (TDI) proposes to amend 28 TAC §12.4, concerning applicability, and to add new Subchapter G, consisting of §12.601, concerning preauthorization exemptions for independent review organizations (IROs). These amended and new sections implement House Bill 3459, 87th Legislature, 2021.

Section 12.4. The amendments to §12.4(a) replace the phrase “of this subchapter” with “of this title” and add a reference to the section heading for consistency with current agency language preferences and drafting practices. The amendments to §12.4(b) remove obsolete applicability language. New language states that independent reviews of adverse determinations regarding preauthorization exemptions made under Texas Insurance Code Chapter 4201, Subchapter N, must comply with new §12.601 as added by this proposal.

BACKGROUND AND JUSTIFICATION

Amended §12.4 and new Subchapter G, consisting of §12.601, are necessary to conform TDI’s utilization review rules with HB 3459. HB 3459 allows a health maintenance organization or insurer to rescind an exemption from preauthorization requirements under certain conditions. A physician or provider may appeal an adverse determination regarding a preauthorization to an IRO to review the appropriateness of the rescission determination by the health maintenance organization or insurer.

New 28 TAC §12.601, outlining requirements and procedures for appeals of adverse determinations regarding a preauthorization exemption.

CHAPTER 12. INDEPENDENT REVIEW ORGANIZATIONS
SUBCHAPTER G. EXEMPTIONS FOR INDEPENDENT REVIEW ORGANIZATIONS
28 TAC §12.601

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Subchapter G. Exemptions for Independent Review Organizations. TDI proposes to add new Subchapter G, which consists of new §12.601.
Section 12.601. New §12.601 outlines requirements and procedures for appeals of adverse determinations regarding a preauthorization exemption.
New §12.601(a) defines “adverse determination regarding a preauthorization exemption,” “issuer,” “physician,” “preauthorization exemption,” and “provider” in order to clarify these terms, which may have different meanings in other contexts in 28 TAC Chapter 12, and to refer to the preauthorization exemption process in 28 TAC Chapter 19.
New §12.601(b) states that the independent review of an adverse determination regarding a preauthorization exemption, the IRO that performs that review, and the appropriate issuer are subject to Insurance Code Chapter 4201, Subchapter N, and 28 TAC Chapter 12, except as otherwise specified in §12.601.
New §12.601(c) states that for the purposes of §12.601, a physician or provider should be identified using the National Provider Identifier under which a physician or provider makes preauthorization requests.
New §12.601(d) states that an issuer must submit a request for independent review of an adverse determination regarding a preauthorization exemption to TDI on behalf of a physician or provider.
New §12.601(e) requires that the IRO use the same random sample of claims used in the issuer’s initial determination to rescind the preauthorization exemption and that only claims that did not meet the screening criteria are subject to independent review. A physician or provider can request that the IRO review another random sample of claims under Insurance Code §4201.656(d) to the extent that the issuer conducted a retrospective review of more claims than were included in the original random sample.
New §12.601(f) states that appeals for an adverse determination regarding a preauthorization exemption follow TDI’s process for assigning IROs under 28 TAC §12.502, except that TDI will only provide notice of the appeal to the IRO, the issuer, and the physician or provider.
New §12.601(g) states that 28 TAC §12.206 does not apply to an IRO’s independent review of an adverse determination regarding a preauthorization exemption.

Amending 28 TAC §19.1710 to clarify that a utilization review agent must afford the provider of record a reasonable opportunity to discuss the plan of treatment for the enrollee with a physician licensed to practice in Texas.

CHAPTER 19. LICENSING AND REGULATION OF INSURANCE PROFESSIONALS
SUBCHAPTER R. UTILIZATION REVIEWS FOR HEALTH CARE PROVIDED UNDER A HEALTH BENEFIT PLAN OR HEALTH INSURANCE POLICY
28 TAC §19.1710

OVERVIEW

The Texas Department of Insurance (TDI) proposes to amend 28 TAC §19.1710 and to add new 28 TAC Chapter 19, Subchapter R, Division 2, §§19.1730 – 19.1733, concerning requirements prior to issuing an adverse determination and preauthorization exemptions. These amended and new sections implement House Bill 3459, 87th Legislature, 2021.

Amended §19.1710 clarifies that a utilization review agent must afford the provider of record a reasonable opportunity to discuss the plan of treatment for the enrollee with a physician licensed to practice in Texas. This section follows Insurance Code §4201.206, as amended by HB 3459, in which new language specifies that an agent must provide to a health care provider an opportunity to discuss the health care service in question with a physician licensed to practice medicine “in this state.” Physicians holding Texas Administrative Medicine Licenses under the Medical Practice Act and Texas Medical Board rule 22 TAC §172.17 meet this standard. TDI has historically interpreted this statute to include Texas Administrative Medicine Licenses, and TDI believes that recent changes to §4201.206 do not indicate that this long-standing position should change. The section is also amended to add a sentence stating, in accordance with Insurance Code §4201.206, that if the health care service was ordered, requested, or provided by a physician, the opportunity to discuss the health care service in question must be with a physician licensed to practice medicine in Texas and who has the same or similar specialty as the requesting physician.

BACKGROUND AND JUSTIFICATION

The amendments to §19.1710 and addition of new Division 2, §§19.1730 – 19.1733 to Subchapter R are necessary to conform TDI’s rules regarding utilization review with HB 3459. HB 3459 allows a health maintenance organization or insurer to grant, deny, or rescind an exemption from preauthorization requirements under certain conditions. Under the proposed rules, an issuer must provide notice of an initial exemption or denial of an exemption not later than October 1, 2022, based on an evaluation period of January 1, 2022, through June 30, 2022.

New 28 TAC §§19.1730 – 19.1733, describing and distinguishing certain preauthorization exemptions from existing rules in Subchapter R, which relate to utilization review and preauthorization procedures generally.

CHAPTER 19. LICENSING AND REGULATION OF INSURANCE PROFESSIONALS
SUBCHAPTER R. UTILIZATION REVIEWS FOR HEALTH CARE PROVIDED UNDER A HEALTH BENEFIT PLAN OR HEALTH INSURANCE POLICY
DIVISION 2. PREAUTHORIZATION EXEMPTIONS
28 TAC §§19.1730 – 19.1733

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

TDI proposes to add new Division 2, titled “Preauthorization Exemptions,” to distinguish §§19.1730 – 19.1733 from existing rules in Subchapter R, which relate to utilization review and preauthorization procedures generally. After this Division’s adoption, a new Division 1, with a heading clarifying that it addresses utilization review, will be administratively added for §§19.1701 – 19.1719.
Section 19.1730. New §19.1730 defines terms used in the new division: “adverse determination regarding a preauthorization exemption,” “denial of preauthorization exemption,” “evaluation,” “evaluation period,” “issuer,” “particular health care service,” “physician,” “preauthorization,” “preauthorization exemption,” “provider,” “random sample,” “rescission of preauthorization exemption,” and “treating physician or provider.” The definitions clarify:

the nature of an adverse determination regarding a preauthorization exemption, as compared with the meaning of adverse determination under §19.1703;
the number of claims needed for granting or denying a preauthorization exemption;
the threshold percentage of accepted claims needed for an issuer to grant, deny, or rescind a preauthorization exemption;
the nature of an evaluation depending on whether the physician or provider currently has a preauthorization exemption in place;
the time allowed for evaluation periods; and
the scope of “health care services” to include prescription drugs.

Section 19.1731. New §19.1731 describes the initial preauthorization exemption process. Subsection (a) clarifies that for purposes of Division 2, a “physician” or “provider” should be identified using the National Provider Identifier under which a physician or provider makes preauthorization requests. Subsection (b) states that the issuer must review the outcomes of no fewer than 20 preauthorization requests for a particular health care service in a given evaluation period and determine whether the physician or provider qualifies for an exemption. The department specifically seeks comments on this minimum threshold for review and whether it should be modified. Subsection (c) provides the requirements for an issuer to rescind a preauthorization exemption that has already been granted to a physician or provider, which must be rescinded consistent with Insurance Code §4201.655. Subsection (d) clarifies that a treating physician rendering or referring services without a preauthorization exemption who relies on another physician’s preauthorization exemption in violation of subsection (d) may be considered by the issuer as failing to substantially perform the health care service. In that situation, the issuer may reduce or deny payment for that service under Insurance Code §4201.659.
Section 19.1732. New §19.1732(a) states that an issuer must provide notice to the physician or provider when granting a preauthorization exemption, and it requires that an exemption be in place for at least six months before it can be rescinded. If an issuer subsequently receives a preauthorization request from the physician or provider for a service for which the physician or provider has been granted an exemption, the issuer must provide notice in accordance with Insurance Code §4201.659(e). For denials of preauthorization exemptions, new §19.1732(b) states that an issuer must provide notice and list the reasons for a denial in accordance with Insurance Code §4201.655(c)(2). New §19.1732(c) provides a required timeframe for issuing notices of exemption or denial following the initial and subsequent evaluation periods and clarifies that such notices are required with respect to a particular health care service only if the physician or provider had submitted at least 20 preauthorization requests during the evaluation period. The department specifically seeks comments on this minimum duration for exemptions and the timeframe for issuing notices, and whether either should be modified. New §19.1732(d) describes the requirements of the notice that must be delivered to a physician or provider when rescinding a preauthorization exemption, the requirements for a physician or provider to appeal a rescission of preauthorization exemption, and notes an example form (LHL011) available on TDI’s website.
Section 19.1733. New §19.1733(a) clarifies that Insurance Code §4201.305 does not apply to retrospective reviews conducted in accordance with Insurance Code §4201.659(b)(1). New §19.1733(b) provides that a physician or provider has at least 30 days to provide medical records or other documents for the issuer to conduct an evaluation. Medical records can be requested only during an evaluation period or within 90 days following the end of an evaluation period. If the physician or provider does not provide the necessary records for an issuer to make a determination, the issuer may determine that the claim would not have met the screening criteria. New §19.1733(c) states that a physician or provider may request an independent review of the retrospective review that resulted in the rescission of preauthorization exemption at any time before the rescission is effective. New §19.1733(d) provides that a physician or provider must submit to the issuer the form provided by the issuer under §19.1732(c) in order to request an independent review. Upon receipt, the issuer must submit the request for independent review to TDI, consistent with proposed new 28 TAC §12.601 (which is included in a separate proposal) and 28 TAC §19.1717. New §19.1733(e) states that a physician or provider may request that the independent review organization review another random sample of claims. New §19.1733(f) states that an issuer must communicate the determination of a review by the independent review organization to the physician or provider within five days. New §19.1733(g) states that physicians and providers must continue to maintain medical records adequate to demonstrate that the exempted services they provide meet medical guidelines in order to retain a preauthorization exemption. Most, if not all, physicians and providers subject to this proposed rule already maintain records for a sufficient amount of time. See, e.g., 22 TAC §76.4(a) (Texas Board of Chiropractic Examiners rule imposing a six-year records retention requirement); 22 TAC §165.1(b)(1) (Texas Medical Board rule imposing a six-year records retention requirement); and 22 TAC §§291.34(a), 291.75(a), and 291.94(a) (Texas State Pharmacy Board rules imposing a two-year records retention requirement). If there are no adequate records for an issuer to use during an evaluation, an exemption may be rescinded.

New 28 TAC §§21.5401 – 21.5406, detailing requirements related to an all-payor claims database to increase public transparency of health care information and improve the quality of health care in this state.

CHAPTER 21. TRADE PRACTICES
SUBCHAPTER TT. ALL-PAYOR CLAIMS DATABASE
28 TAC §§21.5401 – 21.5406

OVERVIEW

The Texas Department of Insurance proposes new 28 TAC Chapter 21, Subchapter TT, consisting of §§21.5401 – 21.5406, concerning the all-payor claims database. These sections implement House Bill 2090, 87th Legislature, 2021, which amended the Texas Insurance Code by adding Chapter 38, Subchapter I, concerning Texas All-Payor Claims Database.

BACKGROUND AND JUSTIFICATION

Insurance Code Chapter 38, Subchapter I, requires establishment of an all-payor claims database to increase public transparency of health care information and improve the quality of health care in this state. Insurance Code §38.403 provides that the Commissioner is to adopt rules establishing fixed terms for members of a stakeholder advisory group. Insurance Code §38.404 requires the department to collaborate with the Center for Healthcare Data at The University of Texas Health Science Center at Houston (the Center) to aid in the establishment of the database. Insurance Code §38.409 requires the Commissioner, in consultation with the Center, to adopt rules specifying the types of data a payor is required to provide; detailing the schedule, frequency, and manner of data submission; and establishing oversight and enforcement mechanisms.

The department received comments on an informal draft posted on the department’s website on November 12, 2021. The department considered those comments when drafting this proposal.

SECTION-BY-SECTION SUMMARY

Section 21.5401. New §21.5401 identifies the types of health plans that are subject to the requirements to produce all-payor claims data files. As proposed, the list of plans subject to these requirements includes county employee health benefit plans established under Local Government Code Chapter 157 and group dental, health and accident, or medical expense coverage provided by a risk pool created under Local Government Code Chapter 172. The department invites comments on whether these plans qualify as a “payor” under Texas Insurance Code §38.402(7) and can be subject to the requirements of this rulemaking, notwithstanding language in Texas Local Government Code §§157.008(2) and 172.014 limiting the applicability of the Insurance Code to and the department’s authority over such plans. See Tex. Att’y Gen. Op. No. GA-0047 (2003) at 1 (A “risk pool [under Chapter 172 of the Local Government Code] is subject to an Insurance Code provision that expressly encompasses a risk pool.”). The department received a comment on this subject on the informal draft which noted that the filed version of HB 2090 expressly referenced those types of plans, but that reference was removed by the author in a floor amendment. The commenter believed that action indicated a legislative intent not to extend the applicability of HB 2090 to those types of plans. However, the portion of the bill from which those references were deleted did not concern the All-Payor Claims Database. See H.J. of Tex., 87th Leg., R.S., 1056 (2021). Therefore, it is not relevant in determining the proper scope of this rulemaking, so the department seeks additional comments on this issue.
New §21.5401 also specifies that the data required by new Subchapter TT is limited to Texas resident members.
Section 21.5402. New §21.5402 provides definitions of terms used throughout the new rules, including various types of data files.
Section 21.5403. New §21.5403 describes the database’s common data layout and permits the Center to provide flexibility for payors submitting data by issuing a submission guide or other technical guidance for existing requirements. It also specifies that any inconsistencies in the Center’s submission guide and these rules will be controlled by the text of the rules.
Section 21.5404. New §21.5404 provides technical requirements concerning the formatting, encryption, and transmission of data. It instructs payors or their designees to register with the Center to obtain their credentials and unique identification numbers to be used with the submission and naming of data. It also prohibits the submission of duplicate data submitted by a third party and requires certain payors to ask sponsors of health benefit plans referenced in Insurance Code §38.407 whether they will voluntarily submit plan data.
The new section lists the data files that must be submitted consistent with the requirements of the Texas All-Payor Claims Database (APCD) common data layout (CDL), including standardized values and code sources. It requires files to include information that enables the data to be separated based on the types of plans. It clarifies certain requirements for claims data files, including specifying that all claims data must be submitted for a given reporting period based on the claim adjudication date.
This new section also sets forth requirements related to reporting members’ social security numbers or unique member IDs, requires enrollment and eligibility data to be reported at the individual member level, and requires header and trailer records for file submissions.
Section 21.5405. New §21.5405 describes the timing and frequency of the required data submissions, with schedules provided for each month. It also directs payors to submit test data, historical data, and monthly data based on notice provided by the Center and no sooner than January 1, 2023, for monthly data. This new section also provides an extension for certain small payors; allows other payors an opportunity to request an extension or a temporary exception from some requirements related to the submission of data; and outlines the Center’s role in assessing, receiving, requesting corrections to, and rejecting data.
Section 21.5406. New §21.5406 prescribes the fixed terms to be served by members of the stakeholder advisory group, as directed by statute. It provides dates for the initial terms of the stakeholder advisory group as well as the staggered terms. This new section outlines the obligations of members with respect to required disclosures, conflicts of interest, standards of conduct, and removal for good cause.

Texas Council for Developmental Disabilities

Adopted Rules Re:

Amending 40 TAC §876.9 to correctly identify the statute establishing charges for public records.

CHAPTER 876. GENERAL PROVISIONS
40 TAC §876.9

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) adopts amendments to §876.9, concerning Charges to Access to Public Records. The rule was adopted without changes to the rule as proposed in the Texas Register (46 TexReg 6392) on September 24, 2021, and will not be republished.

BACKGROUND AND JUSTIFICATION

The Council received no comments on the proposed rule.

The purpose of the amendments to §876.9 is to correctly identify the statute establishing charges for public records.

The amendments are authorized under the Texas Human Resources Code, §112.020, which provides authority for the Council to adopt rules as necessary to implement the Council’s duties and responsibilities.

Amending 40 TAC §§877.1, 877.2, 877.4 to clarify rules related to the Council Request for Applications and agency appeals process.

CHAPTER 877. GRANT AWARDS
40 TAC §§877.1, 877.2, 877.4

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) adopts amendments to §877.1 concerning General Provisions, §877.2 concerning Application and Review Process, and to §877.4, concerning Appeal of Funding Decisions. The rules were adopted without changes to the rules as proposed in the September 24, 2021, issue of the Texas Register (46 Tex Reg 6392). The rules will not be republished.

BACKGROUND AND JUSTIFICATION

The purpose of the amendments to §877.1 and §877.2 is to apply consistent language to all sections regarding the Council Request for Applications process. The purpose of the amendment to §877.4 is the clarify the source material for the agency appeals process.