Texas Register August 25, 2023 Volume: 48 Number: 34

Texas Register Table of Contents

Texas Health and Human Services Commission

Adopted Rules Re:

Amending 1 TAC §355.112, to explain that providers contracted with a managed care organization to provide attendant care services may participate in the Attendant Compensation Rate Enhancement Program through their managed care organizations.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER A. COST DETERMINATION PROCESS
1 TAC §355.112

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.112, concerning Attendant Compensation Rate Enhancement. Section 355.112 is adopted with changes to the proposed text as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3565). This rule will be republished.

BACKGROUND AND JUSTIFICATION

Title 42, Code of Federal Regulations (CFR) §441.301(c)(4)(i) – (v) requires home and community-based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated into and supporting full access of individuals to the greater community. HHSC adopted rules to implement individualized skills and socialization in the December 23, 2022, issue of the Texas Register.

The 2022-2023 General Appropriations Act (GAA), Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 23) authorized funding for the provision of individualized skills and socialization in the Home and Community-based Services (HCS), Texas Home Living (TxHmL), and Deaf-Blind with Multiple Disabilities (DBMD) programs. HHSC adopted rates for individualized skills and socialization based on the available appropriations, effective January 1, 2023. The amendment replaces day habilitation with individualized skills and socialization services for the Attendant Compensation Rate Enhancement Program.


Amending 1 TAC §355.304, §355.308, to describe eligibility criteria for direct care reimbursement for nursing facilities.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER C. REIMBURSEMENT METHODOLOGY FOR NURSING FACILITIES
1 TAC §355.304, §355.308

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new rule §355.304, concerning Direct Care Staff Spending Requirement on or after September 1, 2023, and an amendment to §355.308, concerning Direct Care Staff Rate Component. Section 355.304 and §355.308 are adopted with changes to the proposed text as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3577). These rules will be republished.

BACKGROUND AND JUSTIFICATION

The purpose of the adoption is to implement the 2024-25 General Appropriations Act (GAA), House Bill 1, 88th Legislature, Regular Session, 2023 (Article II, Health and Human Services Commission, Rider 24). Rider 24 provides appropriations for rate increases for nursing facilities. Nursing facilities must report to HHSC on their biennial cost report information regarding the use of these funds, including information related to efforts to improve or maintain client care and quality of services, and to demonstrate that at least 90 percent of the funds were expended for the purpose of direct care staff wages or benefits. This new rule operationalizes the rider requirements to enable nursing facilities to receive increased reimbursement rates. The adoption also amends §355.308, related to the Direct Care Staff Rate Component.


Amending 1 TAC §355.513, to update the reimbursement methodology for the Deaf-Blind with Multiple Disabilities Waiver Program.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER E. COMMUNITY CARE FOR AGED AND DISABLED
1 TAC §355.513

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.513, concerning Reimbursement Methodology for the Deaf-Blind with Multiple Disabilities Waiver Program. Section 355.513 is adopted without changes to the proposed text as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3588). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

Title 42 Code of Federal Regulations §441.301(c)(4)(i) – (v), requires home and community-based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated into and supporting full access of individuals to the greater community. HHSC adopted rules in Title 26 Texas Administrative Code (TAC) Chapter 260 to implement individualized skills and socialization effective January 1, 2023.

The 2022-2023 General Appropriations Act (GAA), Senate Bill 1, 87th Legislature, Regular Session, 2021 (Article II, HHSC, Rider 23) authorized funding for the provision of individualized skills and socialization in the Home and Community-based Services (HCS), Texas Home Living (TxHmL), and Deaf-Blind with Multiple Disabilities (DBMD) programs. HHSC adopted rates for individualized skills and socialization based on the available appropriations, effective January 1, 2023.

The purpose of the adoption is to amend the reimbursement methodology for the DBMD Program to remove day habilitation services and establish rate methodologies for individualized skills and socialization services. The adopted amendment also clarifies the rate methodology for residential habilitation transportation, chore, and intervener services by replacing the “other direct care” cost area with an administration and facility cost area to align waiver rate methodology with other similar services.


Amending 1 TAC §355.723, to update reimbursement methodology for Home and Community-Based Services and Texas Home Living Programs.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER F. REIMBURSEMENT METHODOLOGY FOR PROGRAMS SERVING PERSONS WITH MENTAL ILLNESS OR INTELLECTUAL OR DEVELOPMENTAL DISABILITY
1 TAC §355.723

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.723, concerning Reimbursement Methodology for Home and Community-Based Services and Texas Home Living Programs. Section 355.723 is adopted with changes to the proposed text as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3591). This rule will be republished.

BACKGROUND AND JUSTIFICATION

Title 42, Code of Federal Regulations, §441.301(c)(4)(i) – (v), requires home and community-based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated into and supporting full access of individuals to the greater community. HHSC adopted rules in Title 26 Texas Administrative Code (TAC) Chapters 262 and 263 to implement individualized skills and socialization effective January 1, 2023.

The 2022 – 2023 General Appropriations Act (GAA), Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 23) authorized funding for the provision of individualized skills and socialization in the Home and Community-Based Services (HCS), Texas Home Living (TxHmL), and Deaf-Blind with Multiple Disabilities Programs. HHSC adopted rates for individualized skills and socialization based on the available appropriations, effective January 1, 2023.


Amending 1 TAC §355.7051, to describe base wage requirements for personal attendants.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER H. BASE WAGE REQUIREMENTS FOR PERSONAL ATTENDANTS
1 TAC §355.7051

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.7051, concerning Base Wage for a Personal Attendant. Section 355.7051 is adopted with changes to the proposed text as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3598). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The amendment implements Rider 30(a) of the 2024-25 General Appropriations Act, House Bill 1, 88th Legislature, Regular Session, 2023 (Article II, HHSC, Rider 30(a)). Rider 30(a) appropriates funds to HHSC to increase the minimum base wage paid to “personal attendants” from $8.11 to $10.60 per hour.

In response to Rider 30(a), HHSC must update its program requirements to require service providers to pay this updated minimum base wage. To ensure consistency and clarity, the amendment also adds additional services to the definition of “personal attendant,” including assisted living and in-home respite, in the Home and Community-based Services – Adult Mental Health program. In addition, the amendment replaces day habilitation with individualized skills and socialization services.


Amending 1 TAC §355.8052, to include recent U.S. Census data and to adjust rural hospital inpatient reimbursement methodology.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
1 TAC §355.8052

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.8052, concerning Inpatient Hospital Reimbursement. The amendment is adopted without changes to the proposed text as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3601). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

This amendment complies with the 2024-2025 General Appropriations Act, House Bill (H.B.) 1, 88th Legislature, Regular Session, 2023 (Article II, Health and Human Services Commission, Rider 8 and Rider 16). HHSC is required by H.B. 1, to the extent allowed by law, to increase Medicaid inpatient rural hospital labor and delivery rates. Additionally, the rural hospital definition is modified to reflect the population updates in the 2020 U.S. Census. In compliance with Senate Bill 170 (S.B. 170), 86th Legislature, Regular Session 2019, to the extent allowed by law, HHSC will calculate Medicaid rural hospital inpatient rates using a cost-based prospective reimbursement methodology. HHSC must calculate rates for rural hospitals once every two years using the most recent cost information available. HHSC previously published proposed rates to be effective September 1, 2023, and, with this legislative direction, will account for the updates in this rule and republish rates.


In Addition Re:

Notice of Stakeholder Engagement Meetings for Medicaid Payment Rates

MEETINGS.

The Texas Health and Human Services Commission (HHSC) will conduct stakeholder engagement meetings on September 14, 2023, to receive comments on Medicaid payment rate topics that may potentially be addressed at the upcoming November 2023 rate hearings. Commentary will be collected solely on the topics listed in this notice. Proposed rates will not be published at this time.


Texas Department of Licensing and Regulation

Adopted Rules Re:

Amending 16 TAC §§115.1, 115.4, 115.5, 115.13, 115.114, 115.115, 115.120, 115.20, 115.21, 115.23, 115.125, 115.70, 115.80, 115.100, 115.120, new 16 TAC §§115.112, 115.22, and repealing 16 TAC §§115.2, 115.16, 115.121, concerning definitions and licensing requirements for midwives.

CHAPTER 115. MIDWIVES
16 TAC §§ 115.1, 115.4, 115.5, 115.13 – 115.15, 115.20, 115.21, 115.23, 115.25, 115.70, 115.80, 115.100, and 115.120, 115.2, 115.12, 115.16, and 115.121; and the repeal of existing rules at §§115.2, 115.16, and 115.121.

OVERVIEW

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 115, §§115.1, 115.4, 115.5, 115.13 – 115.15, 115.20, 115.21, 115.23, 115.25, 115.70, 115.80, 115.100, and 115.120; new rules at §§115.2, 115.12, 115.16, and 115.121; and the repeal of existing rules at §§115.2, 115.16, and 115.121; regarding the Midwives program, without changes to the proposed text as published in the April 14, 2023, issue of the Texas Register (48 TexReg 1936). These rules will not be republished.

The Commission also adopts a new rule at §115.22, with changes to the proposed text as published in the April 14, 2023, issue of the Texas Register (48 TexReg 1936). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC Chapter 115 implement Texas Occupations Code, Chapter 203, Midwives.

The adopted rules implement changes recommended by Department staff as a result of the four-year rule review conducted under Texas Government Code §2001.039. The adopted rules update requirements relating to approval of basic midwifery education courses, preceptor supervision of student clinical experience, informed client choice and disclosure statements, and retired midwife licenses. The adopted rules also make updates to reflect current Department procedures and remove obsolete or unnecessary language.

The Notice of Intent to Review for Chapter 115 was published in the October 9, 2020, issue of the Texas Register (45 TexReg 7281). The public comment period closed on November 9, 2020. At its meeting on March 3, 2021, the Texas Commission of Licensing and Regulation (Commission) readopted Chapter 115 in its entirety without changes. The readoption notice was published in the March 26, 2021, issue of the Texas Register (46 TexReg 2050). In response to the Notice of Intent to Review for Chapter 115 that was published, the Department received comments from one interested party requesting rule changes that would not be possible without statutory changes. Therefore, the adopted rules do not include any changes in response to public comments, and all the changes are based on recommendations by Department staff.


Board of Chiropractic Examiners

Adopted Rules Re:

Repealing 22 TAC §80.5, to clarify information about the Board’s authority to conduct standard of care reviews during complaint investigations.

CHAPTER 80. COMPLAINTS
22 TAC §80.5

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §80.5 (Expert Review Process) without changes as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3615), and thus will not be republished. The Board will adopt a new §80.5 (Peer Review Process) in a separate rulemaking. This rulemaking action will clarify language relating to the Board’s authority to conduct standard of care reviews during complaint investigations.


New 22 TAC §80.5, clarifying that a reviewer is not authorized to make a legal opinion relating to the liability of any injury in a complaint.

CHAPTER 80. COMPLAINTS
22 TAC §80.5

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §80.5 (Peer Review Process) without changes to the text as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3616), and thus will not be republished. The current §80.5 is being repealed in a separate rulemaking.

Texas Occupations Code §201.210 requires the Board to set up a system where the Board may draw on outside chiropractic expertise (an “expert” reviewer of patient records) to help in investigations involving standard of care allegations. The Board adopted such a system through §80.5.


New 22 TAC §80.8, delineating the policy for processing complaints initiated by Board members and staff.

CHAPTER 80. COMPLAINTS
22 TAC §80.8

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §80.8 (Board Member and Staff Initiated Complaints) without changes to the text as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3618), and thus will not be republished. This action puts into rule the Board’s current policy for processing complaints initiated by Board members and staff.

As practicing chiropractors, Board members interact with other licensees. On occasion, a Board (or staff) member may become aware of facts that indicate that another licensee may be in violation of the statutes and rules under the Board’s jurisdiction and thus need to file a formal complaint. The adopted rule formalizes the Board’s procedures for processing those complaints.


New 22 TAC §82.7, authorizing the agency executive director to make employee equity salary adjustments.

CHAPTER 82. INTERNAL BOARD PROCEDURES
22 TAC §82.7

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §82.7 (Employee Equity Salary Adjustments) without changes to the text as published in the July 7, 2023, issue of the Texas Register (48 TexReg 3619), and thus will not be republished. The General Appropriations Act (GAA) authorizes an agency executive director to make employee equity salary adjustments only if the agency has adopted a rule permitting that action. The adopted rule, which is compliant with the terms of the GAA (Article IX, §3.07, 87th Legislature – Regular Session, 2021 (or successor provisions)), permits the agency executive director to make such adjustments if necessary.


Texas Optometry Board

Adopted Rules Re:

Amending 22 TAC §§271.2, 271.3, 271.5, 271.6, to update the licensing and renewal processes.

CHAPTER 271. EXAMINATIONS
22 TAC §§271.2, 271.3, 271.5, 271.6

OVERVIEW

The Texas Optometry Board (Board) adopts amendments to 22 TAC Chapter 271, Examinations. The specific rules being amended include: §271.2 Applications; §271.3 Jurisprudence Examination Administration; §271.5 Licensure without Examination; and §271.6 National Board Examination. The Board adopts these rules without changes to the proposed text as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2651). The amended rules will not be republished.

BACKGROUND AND JUSTIFICATION

The rules in Chapter 271 were reviewed by the Board’s Administration and Licensing Committee in January 2023 to ensure the licensing and renewal process was efficient and effective. By updating rules relating to licensing, the Board can provide better customer service to its licensees.

The adopted amendments include non-substantive changes to all references from “board” to “Board” and from “executive director” to “Executive Director.” Substantive changes to specific rules are outlined as follows.

In §271.2 Applications, the Board amends the title of the rule to read “Applications for Licensure as Therapeutic Optometrist”; updates the documents required for licensure; updates the statutory reference to Texas Occupations Code Chapter 53 as it relates to convictions that must be reported upon application; states that applications must be approved within one year of application submission or applicants will have to reapply; sets out requirements for applicants who are licensed in other states; and removes language related to scheduling the jurisprudence exam as the Board will allow an applicant to take the exam at any point.

In §271.3 Jurisprudence Examination Administration, the amends the title of the rule to read “Jurisprudence Examination”; clarifies the jurisprudence exam is an “open book” exam; removes language related to scheduling the jurisprudence exam as the Board will allow an applicant to take the exam at any point; states that jurisprudence exam scores are only valid for one year and if an applicant fails to get licensed in that year, applicants will have to retake the exam; and removes language related to the administration of the exam as the Board has outsourced the exam administration to another entity.

In §271.5 Licensure without Examination, the Board clarifies that the rule only applies to those applicants who have not taken Part III of the National Board of Examiners in Optometry and makes other non-substantive grammatical changes and references to statute.

In §271.6 National Board Examination, the Board removes language regarding the jurisprudence exam as it is referenced in a separate rule; and makes other non-substantive grammatical changes and references to statute.


Amending 22 TAC §§273.7, 273.8, 273.12, 273.14, 273.15, to modernize the licensing and license renewal process.

CHAPTER 273. GENERAL RULES
22 TAC §§273.7, 273.8, 273.12, 273.14, 273.15

OVERVIEW

The Texas Optometry Board (Board) adopts amendments to 22 TAC Chapter 273, General Rules. The specific rules being amended include: §273.7 – Inactive Licenses and Retired License for Volunteer Charity Care (to include splitting one rule into two separate rules for clarification purposes), §273.8 – Renewal of License, §273.12 – Profile Information, and §273.14 – License Applications for Military Service Member, Military Veteran, and Military Spouse. The Board adopts a new rule titled §273.15 – Retired License for Volunteer Charity Care. The Board adopts these rules with changes to the proposed text as published in the June 2, 2023, issue of the Texas Register (48 TexReg 2813). The amended rules will be republished.

BACKGROUND AND JUSTIFICATION

The rules in Chapter 273 were reviewed by the Board’s Administration and Licensing Committee in January 2023 to ensure the licensing and renewal process was efficient and effective. By updating rules relating to licensing, the Board can provide better customer service to its licensees.

The adopted amendments include non-substantive changes to all references from “board” to “Board” and from “executive director” to “Executive Director.” Substantive changes to specific rules are outlined as follows.

In §273.7 – Inactive Licenses and Retired License for Volunteer Charity Care, the Board split the rule into two separate rules – one related to Inactive Licenses and one related to Retired License for Volunteer Charity Care. Splitting the rule provides ease of understanding the differences between inactive and retired licenses. In the new §273.7 – Inactive Licenses, the rule eliminates the ability to place a license on inactive status at any time and instead allows it only at renewal.

In the new §273.15 – Retired License for Volunteer Charity Care, the rule moves language previously outlined in §273.7 and also ensures only therapeutic optometrists can update an expired license to a retired license.

In §273.8 – Renewal of License, the Board updates the process to reflect the full transition to the biennial renewal system, clarifies the process for expired licenses to be reinstated under certain circumstances. It ensures the Board’s consideration of convictions are in compliance with Chapter 53 of the Occupations Code, and makes other clarifying corrections to ensure the renewal process is both efficient and effective for licensees and Board staff.

In §273.12 – Profile Information, the Board removes the requirement that licensees provide certain information to the Board upon renewal as the Board no longer collects and disseminates this information. It adds the requirement that a licensee provide a personal email address at renewal.

In §273.14 – License Applications for Military Service Member, Military Veteran, and Military Spouse, the Board updates the definition of “Armed Forces of the United States” to update statutory language, to update the application requirements to ensure military applicants provide the same information as a regular applicant, and changes the initial expiration date of a military license to be the same as a regular applicant. Finally, with the changes to the jurisprudence exam occurring in Chapter 271 – Examination, the Board is requiring military applicants to take the jurisprudence exam prior to licensure instead of prior to the first renewal as waiting to take the jurisprudence exam no longer creates a barrier to expedited licensure.


Texas Board of Pharmacy

Adopted Rules Re:

Amending 22 TAC § 283.4, to extend the period that internship hours may be used for licensure to three years from the date the internship is completed.

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS
22 TAC §283.4

OVERVIEW

The Texas State Board of Pharmacy adopts amendments to §283.4, concerning Internship Requirements. These amendments are adopted without changes to the proposed text as published in the June 16, 2023, issue of the Texas Register (48 TexReg 3033). The rule will not be republished.

The amendments extend the period that internship hours may be used for licensure from two years to three years from the date the internship is completed.


Amending 22 TAC § 283.6, to remove the condition that a pharmacist preceptor must have six months of residency training if the pharmacist-intern’s residency program is accredited by the American Society of Health System Pharmacists.

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS
22 TAC §283.6

OVERVIEW

The Texas State Board of Pharmacy adopts amendments to §283.6, concerning Preceptor Requirements and Ratio of Preceptors to Pharmacist-Interns. These amendments are adopted without changes to the proposed text as published in the June 16, 2023, issue of the Texas Register (48 TexReg 3035). The rule will not be republished.


Repealing 22 TAC §291.24, to remove the standards for a statutory program that no longer exists.

CHAPTER 291. PHARMACIES
SUBCHAPTER A. ALL CLASSES OF PHARMACIES
22 TAC §291.24

OVERVIEW

The Texas State Board of Pharmacy adopts the repeal of §291.24, concerning Pharmacy Residency Programs. The repeal is adopted without changes to the proposed repeal as published in the June 16, 2023, issue of the Texas Register (48 TexReg 3038). The rule will not be republished.


Amending 22 TAC § 291.27, to correct a misspelled word.

CHAPTER 291. PHARMACIES
22 TAC §291.27

OVERVIEW

The Texas State Board of Pharmacy adopts amendments to §291.27, concerning Confidentiality. These amendments are adopted without changes to the proposed text as published in the June 16, 2023, issue of the Texas Register (48 TexReg 3039). The rule will not be republished.


Amending 22 TAC § 291.121, to allow remote pharmacy services to be provided using an automated pharmacy system.

CHAPTER 291. PHARMACIES
SUBCHAPTER G. SERVICES PROVIDED BY PHARMACIES
22 TAC §291.121

OVERVIEW

The Texas State Board of Pharmacy adopts amendments to §291.121, concerning Remote Pharmacy Services. These amendments are adopted without changes to the proposed text as published in the June 16, 2023, issue of the Texas Register (48 TexReg 3040). The rule will not be republished.


Amending 22 TAC § 291.151, to clarify that a pharmacist must verify the completeness and reconciliation of the perpetual inventory of controlled substances for an FEMCF pharmacy.

CHAPTER 291. PHARMACIES
SUBCHAPTER H. OTHER CLASSES OF PHARMACY
22 TAC §291.151

OVERVIEW

The Texas State Board of Pharmacy adopts amendments to §291.151, concerning Freestanding Emergency Medical Care Facility (Class F). These amendments are adopted without changes to the proposed text as published in the June 16, 2023, issue of the Texas Register (48 TexReg 3051). The rule will not be republished.