Texas Register Table of Contents
- 1 The Governor
- 2 Health and Human Services Commission
- 2.0.1 Emergency Rules Re:
- 2.0.1.1 New 26 TAC §500.4, allowing for the temporary expansion of hospital capacity through participation in the CMS Acute Hospital Care at Home Program.
- 2.0.1.2 Renewing 26 TAC §500.21 to update the regulatory requirements for end stage renal disease (ESRD) facilities in response to COVID-19.
- 2.0.1.3 New 26 TAC §553.2001, updating requirements for assisted living facilities in order to mitigate and contain COVID-19.
- 2.0.2 Withdrawn Rules Re:
- 2.0.3 Adopted Rules Re:
- 2.0.3.1 New 1 TAC §355.8217, allowing for the reimbursement of certain costs for qualifying providers under the Public Health Provider – Charity Care Program (PHP-CCP).
- 2.0.3.2 Repealing 26 TAC §§553.61 – 553.64, relating to facility construction for assisted living facilities.
- 2.0.3.3 New 26 TAC §§553.100, 553.101, 553.103, 553.104, 553.107, 553.110 – 553.113, 553.115 – 553.123, 553.125 – 553.149, 553.210 – 553.213, 553.215 – 553.223, 553.225 – 553.249, re-esablishing assisted living facility licensing standards.
- 2.0.4 In Addition Re:
- 2.0.1 Emergency Rules Re:
- 3 Texas Optometry Board
- 4 Department of State Health Services
- 5 Department of Aging and Disability Services
- 6 Texas State Board of Examiners of Psychologists
- 7 Cancer Prevention and Research Institute of Texas
- 8 Texas Board of Nursing
The Governor
Proclamation 41-3852
The Governor, by the authority vested in him by Article III, Sections 5 and 40, and Article IV, Section 8 of the Texas Constitution, does hereby call an extraordinary session of the 87th Legislature, to convene in the City of Austin, commencing at 12:00 p.m. on Saturday, August 7, 2021, for the following relevant purpose:
Legislation providing appropriations from unappropriated available revenues for COVID-19-related healthcare expenses, such as those listed below, taking into consideration the approximately $10.5 billion in funds received by local governments intended to be used on COVID-19 from the American Rescue Plan Act of 2021 (ARPA), Pub. L. No. 117-2:
— healthcare staffing needs, including physicians, nurses, and other medical professionals;
— establishing, staffing, and operating alternative care sites;
— supporting the operations of nursing homes, state supported living centers, assisted living facilities, and long-term care facilities;
— vaccine administration;
— testing sites;
— supplies and equipment, such as personal protective equipment (PPE) and ventilators; and
— standing up and operating infusion centers.
Legislation providing strategies for public-school education in prekindergarten through twelfth grade during the COVID-19 pandemic, which ensures:
— students receive a high-quality education and progress in their learning;
— in-person learning is available for any student whose parent wants it;
— the wearing of face coverings is not mandatory; and
— COVID-19 vaccinations are always voluntary.
Health and Human Services Commission
Emergency Rules Re:
New 26 TAC §500.4, allowing for the temporary expansion of hospital capacity through participation in the CMS Acute Hospital Care at Home Program.
CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER A. HOSPITALS
26 TAC §500.4
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 §500.4, concerning an emergency rule in response to COVID-19 in order to permit a licensed hospital to participate in the Centers for Medicare & Medicaid Services (CMS) Acute Hospital Care at Home Program to expand hospital capacity in response to the COVID-19 pandemic.
HHSC is adopting an emergency rule to temporarily permit a currently licensed hospital to participate in the CMS hospitals at home program to expand hospital capacity in response to the COVID-19 pandemic.
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 Participating in the Centers for Medicare and Medicaid Services Acute Hospital Care at Home Program During the COVID-19 Pandemic.
Renewing 26 TAC §500.21 to update the regulatory requirements for end stage renal disease (ESRD) facilities in response to COVID-19.
CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER B. END STAGE RENAL DISEASE FACILITIES
26 TAC §500.21
OVERVIEW
The Health and Human Services Commission is renewing the effectiveness of emergency rule §500.21 for a 60-day period. The text of the emergency rule was originally published in the April 23, 2021, issue of the Texas Register (46 Tex Reg 2635).
HHSC is renewing the emergency rule to reduce barriers to treatment for dialysis patients by updating ESRD facility regulatory guidelines regarding staffing ratios, in-home visits, telemedicine, incident reporting, and education and training requirements for staff.
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 rule for ESRD Facility Requirements During the COVID-19 Pandemic.
New 26 TAC §553.2001, updating requirements for assisted living facilities in order to mitigate and contain COVID-19.
CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
SUBCHAPTER K. COVID-19 RESPONSE
26 TAC §553.2001
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 553, Licensing Standards for Assisted Living Facilities, new §553.2001, concerning an emergency rule in response to COVID-19 and requiring assisted living facility actions to mitigate and contain COVID-19.
HHSC is adopting an emergency rule to require assisted living facility actions to mitigate and contain COVID-19. The purpose of the new rule is to describe these requirements.
BACKGROUND AND JUSTIFICATION
As authorized by Texas Government Code §2001.034, the Commission 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. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for Assisted Living Facility COVID-19 Response.
Withdrawn Rules Re:
Withdrawal of 26 TAC §553.251 concerning construction and licensing requirements for Certified Alzheimer’s Disease Assisted Living facilities.
CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
SUBCHAPTER D. FACILITY CONSTRUCTION
DIVISION 12. SPECIALIZED ASSISTED LIVING FACILITIES
26 TAC §553.251
The Executive Commissioner of the Texas Health and Human Services withdraws proposed new §553.251, Construction Requirements for a Certified Alzheimer’s Disease Assisted Living Facility, which appeared in the April 9, 2021, issue of the Texas Register (46 Tex Reg 2336).
Adopted Rules Re:
New 1 TAC §355.8217, allowing for the reimbursement of certain costs for qualifying providers under the Public Health Provider – Charity Care Program (PHP-CCP).
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 11. TEXAS HEALTHCARE TRANSFORMATION AND QUALITY IMPROVEMENT PROGRAM REIMBURSEMENT
1 TAC §355.8217
OVERVIEW
The Texas Health and Human Services Commission (HHSC) adopts new §355.8217, concerning Payments to Public Health Providers for Charity Care. New §355.8217 is adopted with changes to the proposed text as published in the May 28, 2021, issue of the Texas Register (46 Tex Reg 3340). The text of the rule will be republished.
BACKGROUND AND JUSTIFICATION
The purpose of the new rule is to authorize HHSC to implement the Public Health Provider – Charity Care Program (PHP-CCP) payments to be available for eligible providers to help defray the uncompensated costs of charity care beginning October 1, 2022.
The PHP-CCP under the 1115 waiver reimburses certain costs for qualifying providers associated with providing care, including behavioral health, immunizations, chronic disease prevention, and other preventative services for the uninsured. This program was created as part of the 1115 waiver extension and will provide an opportunity for reimbursement of charity care costs (or Medicaid shortfall in the first year of the program).
In accordance with the Special Terms and Conditions of the 1115 waiver, to participate in the program, providers must be funded by a unit of government able to certify public expenditures. Publicly-owned and operated providers eligible to participate include:
(1) The following providers established under Texas Health and Safety Code Chapters 533 or 534 and primarily providing behavioral health services:
(a) Community Mental Health Clinics (CMHCs)
(b) Community Centers
(c) Local Behavioral Health Authorities (LBHAs)
(d) Local Mental Health Authorities (LMHAs)
(2) Local Health Departments (LHDs) and Public Health Districts (PHDs) established under the Texas Health and Safety Code Chapter 121.
Repealing 26 TAC §§553.61 – 553.64, relating to facility construction for assisted living facilities.
CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
SUBCHAPTER D. FACILITY CONSTRUCTION
26 TAC §§553.61 – 553.64
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), adopts the repeals of §§553.61 – 553.64.
BACKGROUND AND JUSTIFICATION
The repeals and new rules are necessary to comply with Senate Bill 1049, 85th Legislature, Regular Session, 2017, by amending the Licensing Standards for Assisted Living Facilities in 26 TAC Chapter 553 to adopt the 2012 edition of National Fire Protection Association (NFPA) 101, Life Safety Code for assisted living facilities.
New 26 TAC §§553.100, 553.101, 553.103, 553.104, 553.107, 553.110 – 553.113, 553.115 – 553.123, 553.125 – 553.149, 553.210 – 553.213, 553.215 – 553.223, 553.225 – 553.249, re-esablishing assisted living facility licensing standards.
CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
SUBCHAPTER D. FACILITY CONSTRUCTION
26 TAC §§553.100, 553.101, 553.103, 553.104, 553.107, 553.110 – 553.113, 553.115 – 553.123, 553.125 – 553.149, 553.210 – 553.213, 553.215 – 553.223, 553.225 – 553.249
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), adopts new §§553.100, 553.101, 553.103, 553.104, 553.107, 553.110 – 553.113, 553.115 – 553.123, 553.125 – 553.149, 553.210 – 553.213, 553.215 – 553.223, 553.225 – 553.249, in Title 26, Texas Administrative Code (TAC), Chapter 553, Licensing Standards for Assisted Living Facilities.
BACKGROUND AND JUSTIFICATION
The repeals and new rules are necessary to comply with Senate Bill 1049, 85th Legislature, Regular Session, 2017, by amending the Licensing Standards for Assisted Living Facilities in 26 TAC Chapter 553 to adopt the 2012 edition of National Fire Protection Association (NFPA) 101, Life Safety Code for assisted living facilities.
The new rules reorganize current Subchapter D into divisions by facility size and type to provide consistency across divisions. HHSC licenses two types of facilities: Type A and Type B. Type A facilities may care for residents who are physically and mentally able to evacuate unassisted during an emergency. Type B residents may be incapable of following directions in an emergency and may require assistance from staff to evacuate. Both types of facilities are classified as either small or large, depending on the number of residents. A small facility has 16 or fewer residents, and a large facility has 17 or more residents.
In Addition Re:
Public Notice: 1115 Waiver Amendment for Autism Services (effective February 1, 2022)
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 Quality Improvement Program (THTQIP) waiver under section 1115 of the Social Security Act. The proposed effective date for this amendment is February 1, 2022.
BACKGROUND AND JUSTIFICATION
In response to Texas General Appropriations Act Rider 28, Article II, Senate Bill 1 for the 2022-23 Biennium, which appropriated funds for applied behavioral analysis (ABA) services for autism, the Texas Health and Human Services Commission (HHSC) is clarifying the coverage of certain early and periodic screening, diagnostic, and treatment (EPSDT) services for children and youth with a diagnosis of autism spectrum disorder (ASD) in its State Plan. HHSC is seeking approval to make non-risk payments to Managed Care Organizations (MCOs) for ABA services.
ABA services will be covered as an EPSDT service to the extent required by 42 U.S.C. 1396a(a)(43).
Providing ABA services will allow HHSC to expand the array of services available for the treatment of individuals with a diagnosis of ASD. ABA services will be provided using an interdisciplinary model of care, which will include participation of the individual and their parent/caregiver and will ensure the coordination of care for the individual. This is consistent with the 1115 demonstration waiver goal of supporting the development and maintenance of a coordinated care delivery system.
SUMMARY OF PROPOSED CHANGES
ABA services for Medicaid-enrolled children/youth with a diagnosis of ASD will include: behavior identification assessment; individual and group treatment by protocol; individual and group treatment with protocol modification; family treatment guidance; and the related service of treatment team conferences. HHSC, at the recommendation of its actuaries, proposes to implement the ABA services under a non-risk payment arrangement with the MCOs until sufficient and credible data are available to be able to set actuarially sound capitation rates in accordance with 42 CFR 438.4. This will allow HHSC additional time to capture experience data which can be used to inform future efforts to revise capitation payments for inclusion of the autism services.
Appendix 1 to Attachment 3.1-A and B, Other Practitioners’ Services, in the Medicaid State Plan will be amended to add the coverage described above and to identify the provider types eligible to deliver the services. Attachment 4.19-B, section 32 EPSDT will also be amended to update the fee schedule and rate methodologies to add reimbursement for the covered services as described above.
Public Notice: Texas State Plan for Medical Assistance Amendment (Effective September 1, 2021)
OVERVIEW
The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act.
BACKGROUND AND JUSTIFICATION
The purpose of the amendment is to adjust the payment rate methodology for the pediatric care facility special reimbursement class of nursing facilities. The proposed methodology will be based upon the unadjusted federal per diem rate for rural Medicare skilled nursing facilities for the most recent federal fiscal year. As part of this amendment, language about the performance-based add-on payment methodology for nursing facilities will be repealed because it is no longer applicable, and this language will be replaced with the pediatric care facility reimbursement methodology. The amendment is proposed in order to implement the requirements of the 2022-23 General Appropriations Act, Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, HHSC, Rider 40). The proposed amendment is effective September 1, 2021.
The proposed amendment is estimated to result in an annual aggregate expenditure of $154,408 for the remainder of federal fiscal year (FFY) 2021, consisting of $105,013 in federal funds and $49,395 in state general revenue. For FFY 2022, the estimated annual aggregate expenditure is $1,861,396, consisting of $1,160,580 in federal funds and $700,816 in state general revenue. For FFY 2023, the estimated annual aggregate expenditure is $1,961,000, consisting of $1,192,288 in federal funds and $768,712 in state general revenue.
HEARING DETAILS
A rate hearing was held on July 12, 2021 at 9:00 a.m. in Austin, Texas. Information about the proposed rate change and the hearing can be found in the July 2, 2021 issue of the Texas Register on page 4045 at http://www.sos.state.tx.us/texreg/index.shtml.
To obtain a copy of the proposed amendment, interested parties may contact Holly Freed, State Plan Team Lead, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, TX 78711; by telephone at (512) 428-1932; by facsimile at (512) 730-7472; or by email at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. At this time, HHSC is encouraging communications be sent via email. Copies of the proposed amendment will be available for review at the local county offices of HHSC, (which were formerly the local offices of the Texas Department of Aging and Disability Services).
Texas Optometry Board
Proposed Rules Re:
Repealing 22 TAC §280.11, which established requirements for the treatment of glaucoma by an Optometric Glaucoma Specialist.
CHAPTER 280. THERAPEUTIC OPTOMETRY
22 TAC §280.11
The Texas Optometry Board proposes the repeal of 22 TAC §280.11, Treatment of Glaucoma by an Optometric Glaucoma Specialist. SB993 of the 87th Regular Legislative Session, related to the practice of optometry and specifically the treatment of glaucoma by an optometric glaucoma specialist, is effective as of September 1, 2021. Therefore, the Texas Optometry Board finds that Board §280.11 is no longer necessary since the amended statute as of September 1, 2021, and other related rules will govern the treatment of glaucoma.
Adopted Rules Re:
Amending 22 TAC §271.2 to update the deadline for application and examination fee payment.
CHAPTER 271. EXAMINATIONS
22 TAC §271.2
OVERVIEW
At the July 30, 2021, meeting of the Texas Optometry Board, the Board moved unanimously to adopt amendments to Rule 271.2 (g) and (h) without change to the proposed text published in the May 28, 2021, issue of the Texas Register (46 Tex Reg 3359). This adopted amendment updates the deadline for the examination and clarifies the fee requirements.
BACKGROUND AND JUSTIFICATION
The Texas Optometry Board adopts amendments to §271.2, Applications. Specifically, the Texas Optometry Board adopts an amendment to the deadline for the completed application and examination fee requirements. The examination fee remains the same and unchanged. The Texas Optometry Board updated its policies regarding the availability of examinations for students and the proposed rule changes are simple changes that go along with the update to the examination schedule. The amendment is necessary to protect the health, safety, and welfare of the residents of this state. The amendment applies to all prospective licensees and it is predicted that there will be no additional economic costs subject to the amendment.
New 22 TAC §275.3, requiring licensees to submit continuing education certificates digitally to a specified digital tracking platform.
CHAPTER 275. CONTINUING EDUCATION
22 TAC §275.3
OVERVIEW
At the July 30, 2021, meeting of the Texas Optometry Board, the Board moved unanimously to adopt new §275.3 without changes to the proposed text as published in the May 28, 2021, issue of the Texas Register (46 Tex Reg 3360).
This new rule requires all licensees to submit proof of completion of continuing education hours to the Board’s digital education tracking platform beginning in January 2022. This does not impact the type or number of continuing education hours required for each renewal.
BACKGROUND AND JUSTIFICATION
The Texas Optometry Board adopts new §275.3 Continuing Education Tracking System, which requires licensees to submit continuing education certificates digitally to a digital continuing education tracking platform. This new rule creates clear requirements for continuing education reporting as of January 1, 2022.
Department of State Health Services
Proposed Rules Re:
New 25 TAC §1.65, describing requirements for low-THC cannabis research.
CHAPTER 1. MISCELLANEOUS PROVISIONS
SUBCHAPTER D. LOW-THC CANNABIS FOR COMPASSIONATE USE [DESIGNATING INCURABLE NEURODEGENERATIVE DISEASES]
25 TAC §1.65
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes new §1.65, relating to Compassionate-use Research and Reporting.
BACKGROUND AND JUSTIFICATION
This proposal is necessary to comply with House Bill (H.B.) 1535, 87th Legislature, Regular Session, 2021, which amended Texas Health and Safety Code, Chapter 487 by adding Subchapter F, Compassionate-use Research and Reporting. H.B. 1535 requires the Executive Commissioner of HHSC to adopt rules to implement Subchapter F. H.B. 1535 also states that a compassionate-use institutional review board (CIRB) may be established to evaluate, approve, and oversee research programs to study the medical use of low-THC cannabis and to submit written reports that describe and assess the research findings to HHSC and the Legislature. The Executive Commissioner charged the implementation of H.B. 1535 to DSHS.
SECTION-BY-SECTION SUMMARY
Proposed new §1.65(a) – (f) provides guidance for compassionate-use IRBs when reviewing and approving low-THC cannabis research program studies.
Proposed new §1.65(g) designates that each CIRB submit a written report to DSHS by October 1 of each year, and to the Texas Legislature by October 1 of even-numbered years.
Department of Aging and Disability Services
Proposed Rules Re:
CHAPTER 79. LEGAL SERVICES
SUBCHAPTER S. CONTRACTING ETHICS
40 TAC §§79.1801 – 79.1806
OVERVIEW
The proposed repeal of §§79.1801 – 79.1806 removes outdated and obsolete rules with substance that continues to be addressed in state statutes, other HHSC rules, and in HHSC policy and contracts.
As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS that have not been repealed or administratively transferred to Title 26, Health and Human Services, as appropriate, are codified in Title 40, Part 1. Until the remaining rules in Title 40, Part 1, are repealed or administratively transferred, those rules govern the functions previously performed by DADS that have transferred to HHSC.
Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the Health and Human Services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC proposes the repeal of Chapter 79, Subchapter S, concerning Contracting Ethics, which comprises §§79.1801 – 79.1806.
BACKGROUND AND JUSTIFICATION
The purpose of the proposal is to repeal obsolete rules in Chapter 79, Subchapter S, concerning Contracting Ethics, which were last updated in 1999, and do not reflect subsequent agency changes and consolidation, or statutory changes made to Texas Government Code Chapter 572, Personal Financial Disclosure, Standards of Conduct, and Conflict of Interest, and other ethics statutes.
The need for this repeal of obsolete Chapter 79, Subchapter S rules was initially identified in connection with a legislatively mandated review of HHSC processes for completing nursing facility changes of ownership, based on which HHSC was required to submit recommendations for improvement in its required report to the Office of the Governor and the Legislature.
Ethical standards addressed by the subchapter proposed for repeal will continue to be addressed, including for contracts for goods and services for which DADS previously contracted, through:
- HHSC rules in Title 1, Part 15, Chapter 391, Purchase of Goods and Services by the Texas Health and Human Services Commission, Subchapter D, Standards of Conduct for Vendors;
- self-implementation of longer standing and more recent statutory ethics provisions, particularly in Texas Government Code Chapter 572;
- the Health and Human Services Ethics Policy; and
- incorporation of applicable standards of conduct and restrictions into HHSC contracts.
Texas State Board of Examiners of Psychologists
Withdrawn Rules Re:
Withdrawing 22 TAC §465.5 relating to rules of practice for psychologists.
CHAPTER 465. RULES OF PRACTICE
22 TAC §465.5
Proposed new §465.5, published in the July 10, 2020, issue of the Texas Register (45 Tex Reg 4641), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).).
Cancer Prevention and Research Institute of Texas
Withdrawn Rules Re:
Withdrawing 25 TAC §703.25 relating to the approval process for budget requests by grant recipients.
CHAPTER 703. GRANTS FOR CANCER PREVENTION AND RESEARCH
25 TAC §703.25
Proposed new §703.25, published in the September 4, 2020, issue of the Texas Register (45 Tex Reg 6212), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).).
Texas Board of Nursing
Adopted Rules Re:
Amending 22 TAC §221.14 to updates and clarify rules governing advanced practice nurses.
CHAPTER 221. ADVANCED PRACTICE NURSES
22 TAC §221.14
OVERVIEW
The Texas Board of Nursing (Board) adopts amendments to 22 Texas Administrative Code §221.14, relating to Nurse-Midwives Providing Controlled Substances, without changes to the proposed text as published in the June 11, 2021, issue of the Texas Register (46 Tex Reg 3601). The rule will not be republished.
BACKGROUND AND JUSTIFICATION
As required by Tex. Gov’t. Code §2001.039, the Board filed its notice of intention to review and consider for re-adoption, re-adoption with amendments, or repeal, 22 Texas Administrative Code Chapter 221, pursuant to the 2019 rule review plan adopted by the Board at its July 2018 meeting. The notice was posted in the December 11, 2020, issue of the Texas Register (45 TexReg 8885). As a result of the rule review, the Board proposed substantive amendments to §221.14 for consistency with Tex. Occ. Code §157.059, which governs Delegation of Certain Obstetrical Services.
Tex. Occ. Code §157.059 was amended by Senate Bill (SB) 406, effective November 1, 2013. Pursuant to SB 406, a physician may delegate to a physician assistant or a nurse-midwife the act of administering or providing controlled substances to the patients of the physician assistant or nurse-midwife during intrapartum and immediate postpartum care. This delegation is limited to seven nurse-midwives or physician assistants or their full-time equivalents and the designated facility at which the nurse-midwife or physician assistant provides care. Additionally, SB 406 authorized the use of a prescriptive authority agreement as an additional method for physician delegation under Tex. Occ. Code §157.059. It also updated the terminology throughout the bill to refer to advanced practice registered nurses. The Board’s adopted amendments are necessary for consistency with these statutory changes.
Adopted §221.14 controls the provision of controlled substances by nurse-midwives during intra-partum and immediate post-partum care, consistent with applicable statutes and subject to certain requirements. First, physician delegation of the authority to provide controlled substances must be made through a physician’s order, medical order, standing delegation order, prescriptive authority agreement, or protocol that requires adequate and documented availability for access to medical care. Additionally, the delegation may not include the use of a prescription sticker or the use or issuance of an official prescription form or the authority to issue an electronic prescription under the Health & Safety Code §481.075. The adopted rule further requires that the physician’s orders, medical orders, standing delegation orders, prescriptive authority agreements, or protocols require the reporting of or monitoring of each patient’s progress, including complications of pregnancy and delivery and the administration and provision of controlled substances by the nurse-midwife to the patient. Additionally, delegation by a physician is limited to seven nurse-midwives or physician assistants or their full-time equivalents and the designated facility at which the nurse-midwife or physician assistant provides care.
Rule Reviews Re:
Reviewing Title 22, Part 11 to evaluate whether the reasons for originally adopting certain rues relating to nursing continue to exist.
OVERVIEW
Title 22, Part 11
In accordance with the Government Code §2001.039, the Texas Board of Nursing (Board) filed a notice of intention to review and consider for re-adoption, re-adoption with amendments, or repeal, the following chapters contained in Title 22, Part 11, of the Texas Administrative Code, pursuant to the 2019 rule review plan adopted by the Board at its July 2018 meeting.
- Chapter 213. Practice and Procedure, §§213.1 – 213.35
- Chapter 214. Vocational Nursing Education, §§214.1 – 214.13
- Chapter 215. Professional Nursing Education, §§215.1 – 215.13
- Chapter 216. Continuing Competency, §§216.1 – 216.11
- Chapter 221. Advanced Practice Nurses, §§221.1 – 221.17
- Chapter 222. Advanced Practice Registered Nurses with Prescriptive Authority, §§222.1 – 222.10
The notice for Chapters 213, 216, and 221 appeared in the December 11, 2020, issue of the Texas Register (45 Tex Reg 8885). The notice for Chapters 214, 215, and 222 appeared in the June 11, 2021, issue of the Texas Register (46 TexReg 3621).
SUMMARY OF REVIEW
The Board did not receive any public comments on the published rule reviews. During the rule review period for Chapter 221, however, the Board proposed and adopted substantive amendments to §221.14, relating to Nurse-Midwives Providing Controlled Substances, for consistency with statutory requirements. The re-adoption of Chapter 221 in this adoption order includes the most recent substantive rule amendments to §221.14 adopted by the Board and published in the Texas Register on August 20, 2021. Further, during the rule review period for Chapters 214 and 215, the Board received a notice from the Regulatory Compliance Division of the Office of the Governor that it would be reviewing §§214.3, 214.6, 214.7, 215.3, 215.6, and 215.7 pursuant to its statutory mandates. Therefore, the Board will not be re-adopting those sections in this adoption order.
With regard to §§213.1 – 213.35; 214.1, 214.2, 214.4, 214.5, 214.8 – 214.13; 215.1, 215.2, 215.4, 215.5, 215.8 – 215.13; 216.1 – 216.11; 221.1 – 221.17; and 222.1 – 222.10, the Board has completed its review and has determined that the reasons for originally adopting these rules continue to exist. These rules were also reviewed to determine whether they were obsolete, whether they reflected current legal and policy considerations and current procedures and practices of the Board, and whether they were in compliance with Texas Government Code Chapter 2001 (Texas Administrative Procedure Act). The Board finds that these rules are not obsolete, reflect current legal and policy considerations and current procedures and practices of the Board, and that these rules are in compliance with the Texas Administrative Procedure Act.
The Board, therefore, re-adopts §§213.1 – 213.35; 214.1, 214.2, 214.4, 214.5, 214.8 -214.13; 215.1, 215.2, 215.4, 215.5, 215.8 – 215.13; 216.1 – 216.11; 221.1 – 221.17; and 222.1 – 222.10, pursuant to the Texas Government Code §2001.039 and Texas Occupations Code §301.151, which authorizes the Board to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act.