Texas Register December 6, 2019 Volume: 44 Number: 49

Texas Register Table of Contents

Texas Department on Aging and Disability Services

 

Proposed Rules

Assessment and collection of administrative penalties against a Home and Community-based Services program providers or a Texas Home Living program provider

NOTE: This proposal is from the Texas Health and Human Services Commission, although it appears in the Texas Register under the “Department of Aging and Disability Services (DADS),” which went out of existence in 2017.CHAPTER 9. INTELLECTUAL DISABILITY SERVICES–MEDICAID STATE OPERATING AGENCY RESPONSIBILITIESAs 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 Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern 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 amendments to §§9.153, 9.171, 9.186, and 9.188; new §§9.181, 9.182, and 9.183; and the repeal of §9.185 in Subchapter D, Home and Community-based Services (HCS) Program and Community First Choice (CFC); and amendments to §§9.553, 9.575, and 9.576; new §§9.581, 9.586, and 9.587; and the repeal of §9.577 in Subchapter N, Texas Home Living (TxHmL) Program and Community First Choice (CFC), Title 40, Part 1, Chapter 9, Intellectual Disability Services–Medicaid State Operating Agency Responsibilities.BACKGROUND AND PURPOSEThe purpose of the proposed rules is to implement Texas Human Resources Code §§161.089, 161.0891, and 161.0892, added by House Bill 2590, 85th Legislature, Regular Session, 2017. Section 161.089 allows HHSC to assess and collect an administrative penalty against a Home and Community-based Services (HCS) program provider or a Texas Home Living (TxHmL) program provider for a violation of a law or rule relating to the program. Section 161.0891 allows HHSC to permit a program provider to use any portion of the amount of an administrative penalty to ameliorate the violation or improve services in the HCS or TxHmL Program. Section 161.0892 requires HHSC to establish an informal dispute resolution process for HCS and TxHmL program providers to adjudicate disputes related to a proposed enforcement action or related proceeding by HHSC.The proposed rules use the terms “follow-up survey,” “initial certification survey,” “intermittent survey,” “recertification survey,” and “survey” instead of “review” to be more consistent with the terminology used for other programs and services regulated by HHSC.The proposed rules align with current practice by allowing HHSC to evaluate the health and safety of an individual at any time and if a concern from the evaluation is identified, to conduct an intermittent survey. The proposed rules remove the provision that HHSC does not certify an HCS or TxHmL program provider if, at the time of a certification review that occurs after the initial certification review, the program provider is not providing HCS, TxHmL, or CFC services; or did not provide one of those services for 60 consecutive days during the period specified in the rule. The removal of this provision is made because it does not align with current practice. The proposed rules align with current practice by allowing HHSC to choose not to conduct an annual certification survey of a program provider that has a standard contract if the program provider is not the program provider for one or more individuals for at least 60 consecutive calendar days during the period beginning the first day of the certification period to be surveyed through the 121st calendar day before the end of the certification period.The proposed rules require HHSC to send a final survey report to a program provider within 14 calendar days (instead of 21 calendar days) after a survey exit conference to allow the program provider earlier notice of violations that need to be corrected and timely notice of any corresponding administrative penalties that been imposed. The proposed rules remove the provisions allowing a program provider to request an informal review of a finding in a preliminary review report because of the requirement in Human Resources Code §161.0892, which allows a program provider the opportunity to request an informal dispute resolution if the program provider disagrees with a violation in a final survey report.The proposed rules require a program provider to submit a plan of correction for critical violations, in addition to violations that are not critical. This change was made so that HHSC can review a provider’s plan of correction for critical violations and notify the provider if the plan is not acceptable, thereby allowing the provider to work with HHSC to correct the violations within the timeframes required by the rules and minimize the impact of an administrative penalty.To make the surveying process more efficient, the proposed rules allow HHSC to request that a program provider submit evidence of correction to HHSC to determine if the provider has completed its corrective action; and allow HHSC to, at the request of a program provider, conduct a survey earlier than the times prescribed for a post 45-day follow-up survey or a follow-up survey conducted after a critical violation is identified by HHSC.The proposed rules state that HHSC conducts a survey no earlier than 30 calendar days after the effective date of a vendor hold, to reflect HHSC’s current practice.


Texas Department on Aging and Disability Services

Proposed Rules

Assessment and collection of administrative penalties against a Home and Community-based Services program providers or a Texas Home Living program provider

Note: This rule is proposed by the Texas Health and Human Services Commission, although it is listed in the Texas Register under DADS, which was abolished in 2017.CHAPTER 49. CONTRACTING FOR COMMUNITY SERVICESAs 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 are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern 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 amendments to Title 40, Part 1, Chapter 49, Contracting for Community Services, §§49.209, 49.531, 49.532, and 49.534; and new §49.535.BACKGROUND AND PURPOSEThe purpose of the proposed rules is to implement Texas Human Resources Code §161.089 and §161.0891 added by House Bill 2590, 85th Legislature, Regular Session, 2017. These new sections allow HHSC to assess and collect an administrative penalty against a Home and Community-based Services (HCS) program provider or a Texas Home Living (TxHmL) program provider for a violation of a law or rule relating to the program and to permit a program provider to use any portion of the amount of an administrative penalty to ameliorate the violation or improve services in the HCS or TxHmL Program. New and amended rules in Title 40, Chapter 9, Intellectual Disability Services–Medicaid State Operating Agency Responsibilities, are proposed elsewhere in this issue of the Texas Register, to implement administrative penalties and an amelioration process in the HCS and TxHmL Programs. The proposed rules in Chapter 49 add an administrative penalty as a sanction that HHSC may take against a contractor that has a contract for the HCS Program or TxHmL Program. The proposed rules provide that HHSC requires a contractor to pay HHSC the amount of an administrative penalty if the contractor does not choose amelioration or the plan of amelioration is not submitted, denied, or not implemented and the contractor does not appeal the administrative penalty or the contractor appeals the administrative penalty and the final decision from the administrative hearing is favorable to HHSC. The proposed rules provide that, if HHSC approves a plan of amelioration and the cost of the proposed changes is less than the amount of the administrative penalty, HHSC requires a contractor to pay HHSC the difference between the cost of the proposed changes and the administrative penalty.


Texas Board of Chiropractic Examiners

Adopted Rules

Complaints; Undercover Investigations

CHAPTER 80. COMPLAINTS22 TAC §80.6The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §80.6, concerning Undercover Investigations, without changes to the proposed text as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3513). The rule will not be republished.The Board has repealed the previous 22 TAC §80.6 in a separate rulemaking action. The new rule makes non-substantive changes to the text for clarity.


Texas Optometry Board

Adopted Rules

License renewal fees

CHAPTER 273. GENERAL RULES22 TAC §§273.4, 273.8, 273.14The Texas Optometry Board adopts amendments to §§273.4, 273.8, and 273.14 of Chapter 273, Title 22, with changes to the proposed text as published in the September 27, 2019, issue of the Texas Register (44 TexReg 5505); therefore, these rules will be republished. The amendments primarily set license renewal fees and implement Senate Bill 314, Regular Session, 85th Legislature, which authorized the Board to renew licenses for a two-year period instead of the current one-year period. Section 273.4 amendments set fees for license renewal. The amendments to the fees will fund the agency’s required contribution to the costs of the Prescription Monitoring Program as required by House Bill 1, Regular Session, 86th Legislature, Article VIII, §7 and Article IX, §§18.30 and 18.36. License fees are amended to correspond to the two-year period without an increase year-to-year. Late renewal fees are also adjusted according to statute. The retired license for charity work renewal fee has been reduced under the authority of Texas Occupations Code §112.051. The included fee for lists of optometrists is unchanged from the normal charge and the fee for official verifications has been increased to offset increased costs. Language regarding fees for FBI criminal history requests is unnecessary and has been removed. Section 273.8 amendments also clarify that written notice of the impending license expiration may be “sent” rather than the current language of “mailed.” Section 273.14 amendments also implement Senate Bill 1200, 86th Legislature, which provides an alternative process for licensing a military spouse.No comments were received.The amendments to §273.4 are adopted under the Texas Optometry Act, Texas Occupations Code, §§351.151, 351.152, 351.154, 351.304, and 351.308; House Bill 1, Regular Session, 86th Legislature, Article VIII, §7 and Article IX, §§18.30 and 18.36; Senate Bill 314, Regular Session, 85th Legislature (Texas Optometry Act, Texas Occupations Code, §§351.154, 351.163, 351.301, 351.302, 351.304, and 351.309); and Texas Occupations Code §112.051. No other sections are affected by the amendments. The amendments to §273.8 are adopted under the Texas Optometry Act, Texas Occupations Code, §§351.151 and Senate Bill 314, Regular Session, 85th Legislature (Texas Optometry Act, Texas Occupations Code, §§351.154, 351.163, 351.301, 351.302, 351.304, and 351.309). No other sections are affected by the amendments. The amendments to §273.14 are adopted under the Texas Optometry Act, Texas Occupations Code, §§351.151 and Senate Bill 314, Regular Session, 85th Legislature (Texas Optometry Act, Texas Occupations Code, §351.302); Texas Occupations Code §55.006 and Senate Bill 1200, 86th Legislature. No other sections are affected by the amendments.The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The agency interprets §§351.152, 351.154, 351.304, and 351.308 as authorizing the agency to set license renewal and late renewal fees and requiring a deposit to the University of Houston of a percentage of the renewal fee. The agency interprets House Bill 1, Regular Session, 86th Legislature, Article VIII, §7 and Article IX, §§18.30 and 18.36, to require the agency to set fees to fund the Prescription Monitoring Program. Section 112.051 authorizes a fee reduction for the volunteer charity license. The agency interprets §§351.154, 351.163, 351.301, 351.302, and 351.309 to authorize a two-year renewal period. The agency interprets §55.006 as setting the period of the military service member, military veteran or military spouses license as the period of other licenses issued by the agency; and Senate Bill 1200, 86th Legislature, as setting a licensing procedure for certain spouses of military service members.


Texas State Board of Pharmacy

Adopted Rules

Licenses for Military Service Members, Military Veterans, and Military Spouses

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS22 TAC §283.12The Texas State Board of Pharmacy adopts amendments to §283.12, concerning Licenses for Military Service Members, Military Veterans, and Military Spouses. These amendments are adopted without changes to the proposed text as published in the September 27, 2019, issue of the Texas Register at (44 TexReg 5511).The amendments establish procedures for a military spouse who is currently licensed in good standing by a jurisdiction with licensing requirements that are substantially similar to Texas’s requirements to obtain an interim pharmacist license, in accordance with Senate Bill 1200 of the 86th Legislative Session.


Texas State Board of Pharmacy

Adopted Rules

Remote Pharmacy Services

CHAPTER 291. PHARMACIESSUBCHAPTER G SERVICES PROVIDED BY PHARMACIES22 TAC §291.121The 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 September 27, 2019, issue of the Texas Register (44 TexReg 5514). The rule will not be republished.The amendments clarify that a telepharmacy system located at a federally qualified health center may be located in a community in which a Class A or Class C pharmacy is located, in accordance with Senate Bill 670.


Texas State Board of Pharmacy

Adopted Rules

Continuing Education Requirements (modifications re: pain management, controlled substances, human trafficking, and opioid abuse)

CHAPTER 295. PHARMACISTS22 TAC §295.8The Texas State Board of Pharmacy adopts amendments to §295.8, concerning Continuing Education Requirements. These amendments are adopted without changes to the proposed text as published in the September 27, 2019, issue of the Texas Register (44 TexReg 5525), and will not be republished.The amendments add requirements for two hours of continuing education on pain management as specified in House Bill 3285, two hours of continuing education on prescribing and monitoring controlled substances as specified in House Bill 2174, and a human trafficking prevention course as specified in House Bill 2059, and remove a requirement for one hour of continuing education on opioid abuse.


Texas State Board of Pharmacy

Adopted Rules

PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES; continuing education re human trafficking

CHAPTER 297. PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES22 TAC §297.8The Texas State Board of Pharmacy adopts amendments to §297.8, concerning Continuing Education Requirements. These amendments are adopted without changes to the proposed text as published in the September 27, 2019, issue of the Texas Register (44 TexReg 5531).The amendments add a requirement for a human trafficking prevention course as specified in House Bill 2059 and correct grammatical errors.


Texas State Board of Pharmacy

Adopted Rules

Communication with Prescriber

CHAPTER 309. SUBSTITUTION OF DRUG PRODUCTS22 TAC §309.5The Texas State Board of Pharmacy adopts amendments to §309.5, concerning Communication with Prescriber. These amendments are adopted without changes to the proposed text as published in the September 27, 2019, issue of the Texas Register (44 TexReg 5536).The amendments remove the section’s expiration date, in accordance with House Bill 1264.The Board received comments from The National Association of Chain Drug Stores suggesting a modification regarding presumed notice to prescribers. The Board declines to make the change because the suggested language conflicts with §562.0051 of the Texas Pharmacy Act.


Texas State Board of Pharmacy

Adopted Rules

Opioid prescriptions for the treatment of pain

CHAPTER 315. CONTROLLED SUBSTANCES22 TAC §315.3The Texas State Board of Pharmacy adopts amendments to §315.3, concerning Prescriptions. These amendments are adopted without changes to the proposed text as published in the September 27, 2019, issue of the Texas Register (44 TexReg 5537). The rules will not be republished.The amendments specify that opioid prescriptions for the treatment of pain may not exceed a 10-day supply or provide for a refill, in accordance with House Bill 2174, remove the expiration date from the section’s title, and correct grammatical errors.


Texas Department of Insurance

Adopted Rules

Division of Workers’ Compensation: Reimbursement of Services Provided by a Federal Military Treatment Facility (FMTF)) and FMTF Disputes

PART 2. TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATIONCHAPTER 134. BENEFITS–GUIDELINES FOR MEDICAL SERVICES, CHARGES, AND PAYMENTSSUBCHAPTER B. MISCELLANEOUS REIMBURSEMENT28 TAC §134.150, §134.155The Texas Department of Insurance, Division of Workers’ Compensation (DWC) adopts new §134.150 (concerning Reimbursement of Services Provided by a Federal Military Treatment Facility (FMTF)) and §134.155 (concerning FMTF Disputes). The proposed rules were published in the August 30, 2019, issue of the Texas Register (44 TexReg 4659). Both rules are adopted with changes and will be republished.REASONED JUSTIFICATIONThese rules are adopted as required under Senate Bill (SB) 935, 86th Legislature (2019). Senate Bill 935 establishes distinct payment and bill processing obligations to address the balance billing of injured employees, covered by a workers’ compensation insurance plan, who have received treatment at an FMTF. Additionally, SB 935 directs DWC to develop a medical dispute resolution process for FMTF-related disputes.Brooke Army Medical Center (BAMC), an FMTF in San Antonio, is a Level 1 trauma center and part of the State of Texas trauma plan. Civilians, including injured employees, may be transported to BAMC to receive emergency treatment for serious injuries. The Secretary of Defense allows BAMC to treat civilian patients in order to provide ongoing training for military doctors.The admission of an injured employee to an FMTF may involve unique challenges for all parties. In most instances, an injured employee is neither a member of a uniformed service nor a covered beneficiary and, as such, is designated a “civilian.” When care is provided to civilians, FMTFs may pursue full reimbursement of all billed charges and may not recognize state statutory or regulatory requirements for workers’ compensation or group health insurance, such as certain billing and utilization review requirements and limits on reimbursement under medical fee schedules. When bills are not paid in full, FMTFs are required under federal law to initiate debt collection actions against a “civilian” patient. These federal debts may be sent to the U.S. Treasury and can result in garnishment of wages, tax refunds, and social security benefits, as well as adverse actions on credit reports.Under the Texas workers’ compensation system, “an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of injury.” Texas Labor Code §408.021(a). Injured employees who receive medical services at an FMTF rely on their workers’ compensation coverage to insulate them from the cost of treatment for work-related injuries. In Texas’ workers’ compensation system, injured employees do not pay the cost of medical services related to a compensable injury. The costs for a compensable injury are the responsibility of an employer’s workers’ compensation insurance carrier. Consequently, workers’ compensation benefits are the exclusive remedy for injured employees or their legal beneficiaries.Injured employees who have received bills from an FMTF, the U.S. Treasury, or federally contracted collection agencies have sought guidance from DWC. Often, injured employees do not seek assistance until they receive payment demands from collection agencies. Injured employees with bills from an FMTF may see their wages and federal benefits garnished. Data available to DWC shows that approximately 666 injured employees received health care services at BAMC between January 1, 2015, and July 31, 2018, resulting in approximately $25.3 million in charges to insurance carriers. About $13.3 million has been paid and reported by insurance carriers for these services, leaving an unpaid balance of about $12 million.Senate Bill 935 provides a definition for “federal military treatment facility” and clarifies that medical care provided in these facilities is exempt from certain workers’ compensation-specific statutory requirements. Significantly, SB 935 stipulates that, “[t]he reimbursement rates for medical services provided to an injured employee by a federal military treatment facility must be the amount charged by the facility as determined under 32 C.F.R. Part 220.” Labor Code §413.0112(b). Title 32, Part 220 of the Code of Federal Regulations concerns the collection from third party payers of reasonable charges for health care services by FMTFs.Senate Bill 935 also exempts the following statutes from applying to the reimbursement of charges from an FMTF: Insurance Code Chapter 1305 (relating to Workers’ Compensation Health Care Networks); Labor Code §408.0271 (relating to Reimbursement by Health Care Provider); Labor Code §408.0272 (relating to Certain Exceptions for Untimely Submission of a Claim); Labor Code §408.028 (relating to Pharmaceutical Services); Labor Code §408.0281 (relating to Reimbursement for Pharmaceutical Services); Labor Code §413.011 (relating to Reimbursement Policies and Guidelines); Labor Code §413.014 (relating to Preauthorization Requirements); Labor Code §413.041 (relating to Health Care Provider Disclosure); and Labor Code §504.053 (relating to Election by a Political Subdivision to Participate in a Workers’ Compensation Health Care Network).In addition, SB 935 exempts subsection (a) of §408.027 which requires that health care providers submit a claim to an insurance carrier within 95 days of service and subsection (f) which requires that payments made by an insurance carrier must comply with DWC’s fee guidelines if the service provided was out-of-network or must be at a contracted rate if in-network. Insurance carriers are still required to comply with the remaining medical bill processing requirements described in §408.027. Section 413.031 is exempted as it relates to medical fee disputes.Finally, SB 935 requires that DWC adopt rules necessary to implement §413.0112, including rules establishing requirements for processing bills from FMTFs and “a separate medical dispute resolution process to resolve disputes over charges billed directly to an injured employee by [an FMTF].” DWC adopts these rules to implement SB 935.

Texas Health and Human Services Commission

In Addition

Notice of Public Hearing on Proposed Amendments to Texas Administrative Code §§355.8065, 355.8066, and 355.8212

Notice of Public Hearing on Proposed Amendments to Texas Administrative Code §§355.8065, 355.8066, and 355.8212December 18, 20194:00 p.m.Meeting Site:Health and Human Services CommissionRobert D. Moreton BuildingPublic Hearing Room1100 W. 49th StreetAustin, Texas 78751Entry is through security at the main entrance to the building facing 49th Street.Hearing. The Texas Health and Human Services Commission (HHSC) will conduct a public hearing to receive comment on proposed amendments to §355.8065, relating to Disproportionate Share Hospital Reimbursement Methodology, §355.8066, relating to Hospital-Specific Limit Methodology, and §355.8212, relating to Waiver Payments to Hospitals for Uncompensated Charity Care.HHSC will broadcast the public hearing. Persons watching remotely can submit written comments. The broadcast can be accessed at https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings, and will be archived for access on demand at the same website.Proposal. HHSC proposes to amend §355.8065, relating to Disproportionate Share Hospital Reimbursement Methodology, §355.8066, relating to Hospital-Specific Limit Methodology, and §355.8212, relating to Waiver Payments to Hospitals for Uncompensated Charity Care. The proposed amendments were published in the November 29, 2019, issue of the Texas Register.Background and Purpose. The proposed rule amendments describe new payment caps for the Disproportionate Share Hospital (DSH) and Uncompensated Care (UC) Medicaid supplemental payment programs. HHSC proposes to implement a full offset methodology for the state payment cap. That means any payment for services provided to a Medicaid client from any source will be included as an offset to all appropriate Medicaid costs.Written Comments. Written comments regarding the proposal may be sent by U.S. mail, overnight mail, special delivery mail, hand delivery, or e-mail by December 30, 2019. When e-mailing comments, please indicate “Comments on Proposed Rule 20R005” in the subject line.


Texas Health and Human Services Commission

In Addition

Public Notice – 1915(b)4 Waiver Renewal Application Effective June 1, 2020

The Texas Health and Human Services Commission (HHSC) intends to submit to the Centers for Medicare and Medicaid Services (CMS) a request for renewal of a waiver under the authority of §1915(b)(4) of the Social Security Act. The proposed effective date for the renewal is June 1, 2020.HHSC intends to continue offering Community First Choice (CFC) services under §1915(k) of the Social Security Act after May 31, 2020. Provider choice for CFC individuals enrolled in these 1915(c) waivers are limited to the individual’s provider of 1915(c) waiver services. The individual may choose any qualified 1915(c) provider for their specific waiver to receive 1915(c) and CFC services. To maintain existing individual-provider relationships and to reduce administrative burden, HHSC plans to continue to deliver CFC services to recipients of the Texas Home Living (TxHmL), Home and Community-based Services (HCS), Deaf Blind with Multiple Disabilities (DBMD), and Community Living and Support Services (CLASS) waiver programs through the existing provider networks of those programs. Thus, HHSC is requesting to renew the waiver application under §1915(b)(4) of the Social Security Act to ensure that individuals in the §1915(c) waivers continue to receive services through those existing provider networks. HHSC will submit the §1915(b)(4) waiver renewal application to CMS on or before February 20, 2020.HHSC has made changes in the waiver application at renewal by replacing references to the Department of Aging and Disability Services (DADS) with “HHSC” and deleting the references to HHSC providing administrative oversight of DADS because DADS was abolished, and its functions were transferred to HHSC as of September 1, 2017. Other than these changes there were no significant changes. HHSC updated the five-year cost projections for the renewal. HHSC will request that CMS approve the waiver renewal for the five-year period beginning June 1, 2020, and ending May 31, 2025. The waiver is projected to maintain cost effectiveness for waiver years 2020 through 2025.






















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