Texas Register December 8, 2023 Volume: 48 Number: 49

Texas Register Table of Contents

1 Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 Designating Christopher R. “Chris” Carmona of Houston as presiding officer of the Texas Diabetes Council for a term to expire at the pleasure of the Governor. Mr. Carmona is replacing Feyi Obamehinti, Ed.D. of Keller as presiding officer.
2 Office of the Attorney General
- - 2.0.1 Opinions Re:
    - 2.0.1.1 Whether the Texas Board of Chiropractic Examiners has discretion to suspend or revoke a chiropractor’s license under Texas Occupations Code section 201.5065 if the chiropractor is convicted of certain offenses (RQ-0510-KP).
3 Texas Health and Human Services Commission
4 Texas Department of State Health Services
- - 4.0.1 Proposed Rules Re:
    - 4.0.1.1 Repealing 25 TAC §§417.47, 417.49, 417.50, to delete the rules from 25 TAC to reflect the move of the state hospitals from DSHS to HHSC.
  - 4.0.2 Adopted Rule Reviews Re:
    - 4.0.2.1 Adopting the review of Title 25, Part 1, of the chapter concerning the Oral Health Improvement Program.
5 Texas Department of Insurance
- - 5.0.1 Proposed Rules Re:
6 Texas Department of Aging and Disability Services
- - 6.0.1 Proposed Rules Re:
    - 6.0.1.1 Repealing 40 TAC §§3.401 – 3.404, to remove the rule concerning training for new employees, direct support professionals, and refresher training from DADS so they may be replaced by new rules under HHSC.

Governor

Appointments Re:

Designating Christopher R. “Chris” Carmona of Houston as presiding officer of the Texas Diabetes Council for a term to expire at the pleasure of the Governor. Mr. Carmona is replacing Feyi Obamehinti, Ed.D. of Keller as presiding officer.

Office of the Attorney General

Opinions Re:

Whether the Texas Board of Chiropractic Examiners has discretion to suspend or revoke a chiropractor’s license under Texas Occupations Code section 201.5065 if the chiropractor is convicted of certain offenses (RQ-0510-KP).

OVERVIEW

Occupations Code chapter 201 provides for the regulation of chiropractors by the Board of Chiropractic Examiners. Occupations Code chapter 53 is generally applicable to all licensing authorities. Occupations Code section 201.5065 states the Board “shall” suspend or revoke a chiropractor’s license under the circumstances listed. Occupations Code sections 53.021 and 201.502 state the Board “may” suspend a license, revoke a license, or take other disciplinary actions under the circumstances set forth in each statute. Section 201.5065 is the more specific provision when compared with either section 53.021 or section 201.502. While relevant portions of section 53.021 and section 201.502 were adopted after section 201.5065, there is no manifest intent for either provision to prevail over section 201.5065. Therefore, a court would likely conclude Occupations Code section 201.5065 prevails over section 53.021 and section 201.502 in the event of a conflict.

Texas Health and Human Services Commission

Proposed Rules Re:

Amending 1 TAC §353.2, §353.4, to add requirements reimbursements for health care MCOs to reimburse specific out-of-network physicians and out-of-network nursing facilities.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER A. GENERAL PROVISIONS
1 TAC §353.2, §353.4

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.2, concerning Definitions; and §353.4, concerning Managed Care Organization Requirements Concerning Out-of-Network Providers.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed amendment to §353.4 is to require Medicaid health care managed care organizations (MCOs) to reimburse an out-of-network physician for providing Medicaid telemedicine medical services to a child in a primary or secondary school-based setting without prior authorization, even if the physician is not the child’s primary care provider. This requirement is in accordance with Texas Government Code §531.0217(c-4) and is currently implemented through contracts between health care MCOs and HHSC. Texas Government Code §531.0217(c-4) was added by House Bill 1878, 84th Legislature, Regular Session, 2015, and amended by Senate Bill 670, 86th Legislature, Regular Session, 2019.

The proposed amendment to §353.2 adds definitions of “nursing facility,” “nursing facility add-on services,” “nursing facility services,” and “nursing facility unit rate.” The proposed amendment also removes a definition not used in the chapter.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §353.2 adds the definitions for “Nursing facility,” “Nursing facility add-on services,” “Nursing facility services,” and “Nursing facility unit rate” to provide definitions of terms used in §353.4 and to align the definitions with language in managed care contracts. The proposed amendment removes the definition for “Main dental home provider” because this term is not used in the chapter.
The proposed amendment to §353.4 adds paragraph (3) to subsection (b) to include requirements for health care MCOs to reimburse out-of-network physicians for delivering a telemedicine medical service to a child in a primary or secondary school-based setting, even if the physician is not the child’s primary care provider. The proposed amendment to add paragraph (3) to subsection (b) implements Texas Government Code §531.0217(c-4) and further aligns rule language with language in managed care contracts.
The proposed amendment to §353.4 reformats paragraph (1) of subsection (f) so that subparagraph (A) provides out-of-network nursing facilities that are located within the MCO’s service area must be reimbursed at or above 95 percent of the nursing facility unit rate and subparagraph (B) provides out-of-network nursing facilities that are located outside of the MCO’s service area must be reimbursed at or above 100 percent of the nursing facility unit rate. The proposed amendment also removes existing language in subparagraph (B) from paragraph (1) of subsection (f) as that language pertains to the definition of nursing facility unit rates, which is now defined in paragraph (77) of §353.2.
The proposed amendments to §353.2 and §353.4 also reformat the rules as necessary and make minor editorial changes.

New 26 TAC §338.1, to allow LIDDAs during a declared disaster to use certain flexibilities for some rules when providing services.

CHAPTER 338. DISASTER RULE FLEXIBILITIES FOR LOCAL INTELLECTUAL AND DEVELOPMENTAL DISABILITY AUTHORITIES (LIDDAs)
26 TAC §338.1

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Title 26, Texas Administrative Code (TAC), new Chapter 338, Disaster Rule Flexibilities for Local Intellectual and Developmental Disability Authorities (LIDDAs), comprising of §338.1, concerning Disaster Flexibilities.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to add a new chapter and rule to allow LIDDAs to use certain flexibilities to certain rules when providing services during a declared disaster under Texas Government Code §418.014.

LIDDAs provide essential services to individuals with intellectual or developmental disabilities (IDD). This vulnerable population relies on LIDDA staff to assist them in securing the services they need, achieving their desired outcomes and best quality of life. Disaster rule flexibilities for LIDDAs ensure that when a disaster declaration is in effect, HHSC may issue timely guidance and authorize flexibilities for LIDDAs to provide services.

The proposal creates a standing rule allowing HHSC to notify LIDDAs of certain flexibilities immediately upon a disaster declaration. These flexibilities include allowing service coordination to be delivered via audio-only or audio-visual communication to ensure continuity of services, as well as extending some timeframes for LIDDAs. In addition, the proposal requires that LIDDAs follow HHSC guidance related to the rules, comply with all applicable requirements related to security and privacy of information, and notify persons impacted by the flexibilities, if applicable.

SECTION-BY-SECTION SUMMARY

Proposed new §338.1(a) establishes definitions for terminology used in this chapter, including “audio-only,” “audio-visual,” “face-to-face,” and “in-person (or in person).”
Proposed new §338.1(b) establishes that in the event of a declared state of disaster, HHSC may allow flexibilities described in subsection (c). HHSC will notify LIDDAs of the beginning and end dates for rule flexibilities.
Proposed new §338.1(c) identifies the rules for which HHSC will allow flexibilities to the extent authorized under federal and state law, including a flexibility to 26 TAC §331.11(d) that allows LIDDAs to provide service coordination using audio-visual or audio-only communication instead of in person. Additionally, HHSC may allow flexibilities to certain rules that set forth timeframes applicable to the LIDDAs by extending the timeframes.
Proposed new §338.1(d) requires LIDDAs that use the flexibilities to comply with all guidance on the application of the rules identified in subsection (c) published by HHSC, including policy guidance issued by HHSC’s Community Services Division and Medicaid and CHIP Services.
Proposed new §338.1(e) requires that LIDDAs ensure audio-only or audio-visual communication complies with all applicable requirements related to security and privacy of information.
Proposed new §338.1(f) requires LIDDAs to notify persons receiving services, or other individuals, as applicable, of the extensions to the timeframes permitted under subsection (c)(2).

Amending 26 TAC §§745.901, 745.903 – 745.905, to describe how a child-care operation should verify the accuracy of the operation’s controlling persons list and to add the primary caregiver of a family home and the caregiver’s spouse to the definition of controlling person.

CHAPTER 745. LICENSING
SUBCHAPTER G. CONTROLLING PERSONS
26 TAC §§745.901, 745.903 – 745.905

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §745.901, concerning Who is a controlling person at a child-care operation, §745.903, concerning When and how must an operation submit controlling-person information to Licensing, and §745.905, concerning When will Licensing designate someone at my child-care operation as a controlling person; and new §745.904, concerning What must I do to verify the accuracy of the list of controlling persons associated with my operation, in Texas Administrative Code, Title 26, Chapter 745, Licensing, Subchapter G, Controlling Persons.

BACKGROUND AND JUSTIFICATION

The purpose of this proposal is to adopt rules in Chapter 745 to implement HHSC Child Care Regulation’s (CCR) Performance Management Unit (PMU) recommendations from the Fiscal Year (FY) 2019 and FY 2021 reports: Annual Casereading, Read-Behind, and Field Assessment. In these reports, PMU recommended IT enhancements to support a change in current business practice related to verifying an operation’s controlling persons list. The current practice requires CCR inspectors to verify an operation’s controlling persons list during all monitoring inspections. PMU recommended CCR change to a new practice that would require an operation to validate the controlling persons list on a scheduled basis using the operation’s online Child Care Regulation Account.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.901 (1) reorganizes a subdivision of the rule to improve readability; (2) adds language to clarify that a child-care home includes a licensed or registered child-care home; and (3) adds the primary caregiver of a listed family home and the caregiver’s spouse to the definition of a controlling person.
The proposed amendment to §745.903 (1) updates language and punctuation to improve readability; (2) updates a reference; and (3) updates language to reflect that a child-care operation may submit controlling person information online through the operation’s Child Care Regulation Account, not the DFPS website.
Proposed new §745.904 outlines what a child-care operation must do to verify the accuracy of the operation’s controlling persons list by requiring a child-care operation to validate the controlling persons list, including each person’s role at the operation, on a scheduled basis and prescribing the way the operation must complete the validation. The rule requires (1) a School-Age and Before or After-School Program, Licensed Child-Care Center, General Residential Operation, and Child-Placing Agency to validate the accuracy of the list quarterly and make necessary corrections via the child-care operation’s online Child Care Regulation Account; (2) a Licensed Child-Care Home and Registered Child-Care Home to validate the accuracy of the list annually and make necessary corrections via the child-care home’s online Child Care Regulation Account; and (3) a Listed Family Home to validate the accuracy of the list annually and make necessary corrections via the home’s online Child Care Regulation Account or by contacting the local Child Care Regulation office.
The proposed amendment to §745.905 (1) updates a reference; (2) updates language to improve readability; (3) corrects an inaccurate pronoun usage; and (4) removes language that implies a Controlling Person Form is the only way an operation may submit controlling person information.

New 26 TAC §§926.1 – 926.6, to outline the training and refresher training required for state hospital employees, SSLC employees, facility employees, and new facility employees.

CHAPTER 926. TRAINING FOR FACILITY STAFF
26 TAC §§926.1 – 926.6

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §926.1, concerning Application; §926.2, concerning Definitions; concerning §926.3, concerning Training for New Employees; §926.4, concerning Additional Training for Employees who Provide Direct Care to Individuals; §926.5, concerning State Hospital Refresher Training; and §926.6, concerning State Supported Living Center (SSLC) Refresher Training.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed new rules is to reflect the move of the state hospitals from the Department of State Health Services and the state supported living centers from the Department of Aging and Disability Services to HHSC. HHSC is moving several rules from Title 25 of the Texas Administrative Code (TAC), Chapter 417, Subchapter A and 40 TAC Chapter 3, Subchapter D, Training, and consolidating rules under 26 TAC Chapter 926. The proposed rules update agency information, provide uniform training topics and timeframes, and remove text regarding expedited training due to the COVID-19 disaster declaration. The repeal of certain rules from 25 TAC Chapter 417, Subchapter A and 40 TAC Chapter 3, Subchapter D is proposed simultaneously elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

Proposed new §926.1 establishes that the chapter applies to state hospitals in accordance with Texas Health and Safety Code §552.052 and state supported living centers in accordance with Texas Health and Safety Code §555.024.
Proposed new §926.2 provides the definition of certain terms used within the chapter.
Proposed new §926.3 outlines training provided to all new facility employees.
Proposed new §926.4 outlines additional training provided to facility employees who provide direct care.
Proposed new §926.5 outlines refresher training provided to state hospital employees.
Proposed new §926.6 outlines refresher training provided to SSLC employees.

Adopted Rules Re:

Amending 1 TAC §§354.4001 and 354.4003, and new 1 TAC §§ 354.4005 – 354.4007, 354.4009, 354.4011, 354.4013, 354.4015, 354.4017, 354.4019, 354.4021, 354.4023, 354.4025, to outline the requirements and processes for using an Electronic Visit Verification (EVV) system.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER O. ELECTRONIC VISIT VERIFICATION
1 TAC §§354.4001, 354.4003, 354.4005 – 354.4007, 354.4009, 354.4011, 354.4013, 354.4015, 354.4017, 354.4019, 354.4021, 354.4023, 354.4025

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §354.4001, concerning Purpose and Authority; and §354.4003, concerning Definitions; the repeal of §354.4005, concerning Applicability; §354.4007, concerning EVV System; §354.4009, concerning Requirements for Claims Submission and Approval; §354.4011, concerning Member Rights and Responsibilities; and §354.4013, concerning Additional Requirements; and new §354.4005, concerning Personal Care Services that Require the Use of EVV; §354.4006, concerning Home Health Care Services that Require the Use of EVV; §354.4007, concerning EVV System; §354.4009, concerning EVV Visit Transaction and EVV Claim; §354.4011, concerning Visit Maintenance; §354.4013, concerning HHSC and MCO Compliance Reviews and Enforcement Actions; §354.4015, concerning EVV Training Requirements; §354.4017, concerning Process to Request Approval of a Proposed EVV Proprietary System and Additional Requirements for a PSO; §354.4019, concerning Access to EVV System and EVV Documentation; §354.4021, concerning Additional Requirements; §354.4023, concerning Sanctions; and §354.4025, concerning Administrative Hearing.

Sections 354.4001, 354.4003, 354.4005, 354.4006, 354.4007, 354.4009, 354.4011, 354.4013, 354.4015, 354.4017, 354.4019, 354.4021, 354.4023, and 354.4025; and the repeals of Sections 354.4005, 354.4007, 354.4009, 354.4011, and 354.4013; are adopted without changes to the proposed text as published in the September 8, 2023, issue of the Texas Register (48 TexReg 4950). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

In accordance with Section 1903(l) of the Social Security Act (42 U.S.C. §1396b(l)), HHSC requires that electronic visit verification (EVV) be used to document the provision of certain personal care services provided through Medicaid. One purpose of the adopted rules is to ensure that HHSC complies with the requirement in Section 1903(l) that EVV be used to document the provision of Medicaid home health care services. Although Section 1903(l) requires the use of EVV for Medicaid home health services to have begun January 1, 2023, the Centers for Medicare & Medicaid Services (CMS) granted HHSC an extension allowing HHSC to implement this requirement by January 1, 2024.

Another purpose of the adopted rules is to codify in rules current policies and procedures related to EVV including training requirements, visit maintenance requirements, compliance reviews, and the process for HHSC to recognize a health care provider’s proprietary EVV system as described in Texas Government Code §531.024172(g).

Adopted Rule Reviews Re:

Adopting the review of the entirety of Title 26, Part 1, of the chapter covering Preadmission Screening and Resident Review.

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

Chapter 303, Preadmission Screening and Resident Review (PASRR)

Subchapter A General Provisions

Subchapter B PASRR Screening and Evaluation Process

Subchapter C Responsibilities

Subchapter D Vendor Payment

Subchapter E Habilitation Coordination

Subchapter F Habilitative Service Planning for A Designated Resident

Subchapter G Transition Planning

Subchapter H Compliance Review

Subchapter I MI Specialized Services

In Addition Re:

Public Notice – Texas State Plan for Medical Assistance Amendment

The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendments will be effective January 1, 2024.

Texas Department of State Health Services

Proposed Rules Re:

Repealing 25 TAC §§417.47, 417.49, 417.50, to delete the rules from 25 TAC to reflect the move of the state hospitals from DSHS to HHSC.

CHAPTER 417. AGENCY AND FACILITY RESPONSIBILITIES
SUBCHAPTER A. STANDARD OPERATING PROCEDURES
25 TAC §§417.47, 417.49, 417.50

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §417.47, concerning Training Requirements for State Mental Health Facilities; §417.49, concerning References; and concerning §417.50, Distribution.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed repeals is to reflect the move of the state hospitals from the Department of State Health Services (DSHS) to HHSC by moving HHSC rules from Texas Administrative Code (TAC) Title 25, Chapter 417, Subchapter A to 26 TAC Chapter 926 and consolidate HHSC rules. These rules will be repealed, updated, and placed in 26 TAC Chapter 926. The new rules are proposed simultaneously elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

The repeal of the rules in 25 TAC Chapter 417, Subchapter A will delete the rules from 25 TAC and place updated rules in 26 TAC to reflect the transfer of functions from DSHS to HHSC.

Adopted Rule Reviews Re:

Adopting the review of Title 25, Part 1, of the chapter concerning the Oral Health Improvement Program.

The Texas Health and Human Services Commission (HHSC), on behalf of Texas Department of State Health Services (DSHS), adopts the review of the chapter below in Title 25, Part 1, of the Texas Administrative Code:

Chapter 49, Oral Health Improvement Program

Texas Department of Insurance

Proposed Rules Re:

Amending 28 TAC §3.3038, to expand the exceptions for guaranteed renewability to permit coverage under a preferred or exclusive provider benefit plan to be discontinued or nonrenewed if the insured no longer resides, lives, or works in the service area of the issuer

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIES
SUBCHAPTER S. MINIMUM STANDARDS AND BENEFITS AND READABILITY FOR INDIVIDUAL ACCIDENT AND HEALTH INSURANCE POLICIES
28 TAC §3.3038

OVERVIEW

The Texas Department of Insurance (TDI) proposes to amend §3.3038 in Subchapter S of 28 TAC Chapter 3; §§3.3702 – 3.3705 and 3.3707 – 3.3711 in Subchapter X, Division 1, of 28 TAC Chapter 3; and §§3.3720, 3,3722, and 3.3723 in Subchapter X, Division 2, of 28 TAC Chapter 3. TDI also proposes new §3.3712 and §3.3713 in Subchapter X, Division 1; proposes to repeal §3.3725 in Subchapter X, Division 2; and proposes to amend the title of Subchapter X, Division 2. These sections concern preferred and exclusive provider benefit plans. Among other changes, the repeal, amendments, and new sections implement House Bills 711, 1647, 1696, 2002, and 3359, 88th Legislature, 2023; Senate Bill 1264, 86th Legislature, 2019; and Senate Bills 1003 and 2476, 88th Legislature, 2023, and address the court order in Texas Ass’n of Health Plans v. Texas Dept. of Insurance, Travis County District Court No. D-1-GN-18-003846 (October 15, 2020) (TAHP Order), which invalidated 28 TAC §§3.3708(a), 3.3708(b)(1), 3.3708(b)(3), 3.3725(d), and 11.1611(d).

BACKGROUND AND JUSTIFICATION

This proposal implements HB 711, which prohibits anticompetitive contract provisions; HB 1647, which provides protections for certain clinician-administered drugs; HB 1696, which expands protections for optometrists and therapeutic optometrists in contracts with managed care plans; HB 2002, which requires insurers to credit certain out-of-network payments to the enrollee’s deductible and maximum out-of-pocket amounts; HB 3359, which provides extensive network adequacy standards and requirements; SB 1003, which expands facility-based provider types that must be listed in provider directories; and SB 2476, which creates new payment standards and balance billing protections for emergency medical services.

The proposal makes additional amendments in Subchapter S and throughout Subchapter X. The proposed amendments remove payment rules that were invalidated by court order, provide new payment requirements and protections for preferred and exclusive provider plans consistent with SB 1264, expand exceptions to guaranteed renewability requirements, affirm TDI’s prohibition on referral requirements, prohibit penalties on insureds for failure to obtain a preauthorization, restrict misrepresentation of cost-sharing incentives in advertisements, streamline disclosure requirements for policy terms, require that certain filings be submitted to TDI via the National Association of Insurance Commissioners’ System for Electronic Rate and Form Filings (SERFF) instead of email, remove references to a repealed section, and revise sections as necessary to conform to changes in other sections. A proposed amendment revises the title of Subchapter X, Division 2, to reflect that the division addresses application, examination, and plan requirements and applies to both preferred and exclusive provider benefit plans.

SECTION-BY-SECTION SUMMARY

Section 3.3038. Mandatory Guaranteed Renewability Provisions for Individual Hospital, Medical or Surgical Coverage; Exceptions. The proposed amendments to §3.3038 expand the exceptions related to guaranteed renewability to permit coverage under a preferred or exclusive provider benefit plan to be discontinued or nonrenewed if the insured no longer resides, lives, or works in the service area of the issuer by removing a reference to subsection (c) of the section in subsection (a) and amending subsection (c)(4) to include Insurance Code Chapter 1301 and adding references to the insurer’s service area to subsections (c), (e), and (f). These changes implement Insurance Code §1202.051, which addresses guaranteed renewability, and §1301.0056, which addresses qualifying examinations for preferred and exclusive provider benefit plans. As amended by HB 3359, §1301.0056 provides that an insurer may not offer a preferred or exclusive provider benefit plan before the commissioner determines that the network meets the quality of care and network adequacy standards in Insurance Code Chapter 1301 or the insurer receives a waiver.
The proposal amends subsection (d) to require insurers to notify the commissioner of a discontinuance and amend subsection (h) to clarify requirements for uniform modifications. They also add a definition of a uniform modification in new subsection (i), clarify notice requirements by adding new subsection (j), which states that a notice provided to the commissioner under §3.3038 must be submitted as an informational filing consistent with the procedures specified in 28 TAC Chapter 3, Subchapter A, and clarify network filing requirements by adding new subsection (k).
In addition, a proposed amendment to the section title adds a comma, and another proposed amendment adds a reference to the title of Insurance Code Chapter 842 in a citation to the chapter in subsection (c)(4).

Amending 28 TAC §§3.3702 – 3.3705, 3.3707 – 3.3711 and new §§3.3712 and 3.3713, to include prohibitions on contractual anti-steering, anti-tiering, most favored nation, and gag clauses and update disclosures requirements.

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIES
SUBCHAPTER X. PREFERRED AND EXCLUSIVE PROVIDER PLANS
28 TAC §§3.3702 – 3.3705, 3.3707 – 3.3713

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

28 TAC §§3.3702 – 3.2705, 3.3707 – 3.3711, and new 3.3712 and 3.3713
Section 3.3702. Definitions. The proposed amendments to §3.3702 expand the definition of “facility-based physician” in subsection (b)(8) by changing the defined term to “facility-based physician or provider,” thereby including non-physician providers, and by deleting the reference to specific specialists listed in the current definition, consistent with SB 1003.
An amendment also revises subsection (b)(17) to remove the definition of “rural area,” which is no longer needed with the addition of new §3.3713, and replace it with a definition for SERFF.
Amendments also add the titles of a cited Insurance Code chapter and cited Insurance Code sections in subsections (a) and (b)(1), (7), and (10).
Section 3.3703. Contracting Requirements. Proposed amendments to §3.3703 implement HB 711 and HB 1696, respectively, by adding requirements in new paragraphs (29) and (30) of subsection (a) that a contract between an insurer and a preferred provider must comply with Insurance Code §1458.101, concerning contract requirements, including the prohibitions on contractual anti-steering, anti-tiering, most favored nation, and gag clauses, and Insurance Code Chapter 1451, Subchapter D, concerning access to optometrists used under managed care plan, including protections for optometrists and therapeutic optometrists in managed care plans that cover vision or medical eye care. Amendments also update a reference to “facility-based physician group” in subsection (a)(26) by adding the words “or provider” to conform with an amended definition in §3.3702.
Amendments also clarify language in the section by changing “assure” to “ensure” in subsection (a); “shall” to “must” in subsection (a)(4); “x-ray” to “X-ray” in subsection (a)(5); “therein” to “in the contract” in subsection (a)(13); “such immunizations or vaccinations” to “they” and “rules promulgated thereunder” to “implementing rules” in subsection (a)(17); “e-mail” to “email,” “pursuant to” to “in accordance with,” and “in accordance with” to “under” in subsection (a)(20); “methodologies” to “methods” in subsection (a)(20)(A); “pursuant to” to “in accordance with” in (a)(20)(G)(iii); and “utilized insofar as” to “employed to the extent” in subsection (b). In addition, proposed amendments add an apostrophe following the word “days” in subsection (a)(20)(D) and quotation marks around the words “batch submission” in subsection (a)(20)(D), remove parenthetical information following a citation to Insurance Code §1661.005, add the titles of cited Insurance Code sections in paragraphs (13), (14), (15), (18), (25), and (27) of subsection (a) and subsections (b) and (c), and delete an unnecessary use of the word “the” in a citation to Insurance Code §1661.005 in subsection (a)(25). Also, a citation to Insurance Code §1301.0053 is added to subsection (a)(28).
Section 3.3704. Freedom of Choice; Availability of Preferred Providers. The proposed amendments to §3.3704 remove references to §3.3725, which this proposal repeals, and add the titles of cited Insurance Code sections in subsection (a), including in paragraphs (1), (4), (5), (9), and (12). Citations in subsections (a) and (b) to specific Insurance Code sections are replaced with broader chapter and subchapter citations. The citation in subsection (a)(5) to §3.3708 is changed to reflect the proposed amendment to the section title, and the citation to 28 TAC Chapter 19, Subchapter R in subsection (a)(9) is updated to reflect the current name of that subchapter. References in subsection (a) to “basic level of coverage” are updated to clarify that the term refers to out-of-network coverage.
Amendments in subsection (a)(7) affirm TDI’s prohibition on insurers requiring an insured to select a primary care provider or obtain a referral before seeking care, and amendments in subsection (a)(9) prohibit an insurer from penalizing an insured based solely on a failure to obtain a preauthorization, as TDI views such practices as unjust under Insurance Code §1701.055(a)(2). TDI invites comments on amended subsection (a)(9) as proposed. Also, an amendment in subsection (a)(12) removes a citation to 28 TAC §3.3725 to reflect the repeal of that section.
The proposal implements Insurance Code §1458.101(i), as added by HB 711, by replacing the current subsection (e) with a new subsection (e) containing provisions that restrict the use of steering or a tiered network to encourage an insured to obtain services from a particular provider only to situations in which the insurer engages in such conduct for the primary benefit of the insured.
The proposal implements HB 3359 by amending subsection (f) to add requirements that preferred provider plans comply with new network adequacy standards, provide sufficient choice and number of providers, monitor compliance, report material deviations to TDI, and promptly take corrective action. Subsection (f) is also amended to delete the previous network adequacy standards and reference to local market adequacy requirements, consistent with the statutory changes in HB 3359. Subsection (g) is amended to address requirements if a material deviation from network adequacy standards occurs. Amendments to subsection (h) also implement Insurance Code §1301.005(d), as added by HB 3359, by requiring a service area to be defined in terms of one or more Texas counties, removing options to define a service area by ZIP codes or 11 Texas geographic regions, and specifying that a plan may not divide a county into multiple service areas.
In addition, amendments clarify language in the section by changing “pursuant to” to “in accordance with” in subsection (a)(1), “50 percent” to “50%” in subsection (a)(5), “is taken pursuant to the” to “are taken under” in subsection(a)(9), and “accord” to “accordance” in subsection (a)(12).
Section 3.3705. Nature of Communications with Insureds; Readability, Mandatory Disclosure Requirements, and Plan Designations. The proposed amendments to subsections (l) and (n) in §3.3705 implement SB 1003 by updating references to “facility-based physician” and by deleting the related listing of included specialist categories. Amendments to subsection (l) also clarify that the applicability of paragraphs (10) and (11) is consistent with Insurance Code Chapter 1451, Subchapter K.
The amendments modernize and streamline the disclosure requirements, including by shortening the name of the written description to plan disclosure in subsections (b), (c), and (f); requiring insurers to provide the plan disclosure in any plan promotion and link to the plan disclosure from the federally required summary of benefits and coverage in subsection (b); removing the requirement that a plan disclosure follow a specified order and permitting the insurer to use its policy or certificate to provide the disclosure in subsection (b); requiring availability via a website address instead of a mailing address in subsection (b)(2); requiring an explanation relating to preauthorization requirements in subsection (b)(9); conforming to the waiver disclosure requirements in HB 3359 in subsections (b)(14) and (m)(1); conforming prescription drug coverage disclosures requirements to §21.3030 in subsection (b)(4); streamlining network disclosure requirements in in subsection (b)(12); replacing service area disclosures with county disclosure to conform with HB 3359 in subsections (b)(13) and (e)(2); and conforming disclosure requirements concerning reimbursements of out-of-network claims to proposed changes in other sections, such as removing disclosure requirements for preauthorization penalties, consistent with the proposed amendment in §3.3704(a)(9).
Amendments to subsection (c) remove filing requirements for listings of preferred providers, consistent with the changes in subsection (b). A reference in subsection (d) to “basic benefits” is updated to clarify that the term refers to out-of-network coverage.
Amendments to subsection (f) replace the preferred and exclusive provider benefit plan notices to reflect balance billing protections contained in SB 1264 from 2019, to remove outdated references, and to limit the notice requirements to apply only to major medical insurance plans.
In recognition of the robust network adequacy requirements contained in HB 3359, amendments remove requirements in subsection (n) to notify TDI of provider terminations that do not impact network compliance and requirements in subsections (p) and (q) to designate a plan network as an approved or limited hospital care network.
Amendments to subsection (o) update disclosure of payment standards for out-of-network services, consistent with the proposed changes in §3.3708. A reference in subsection (d) to “basic benefits” is updated to clarify that the term refers to out-of-network coverage. Amendments also add the titles of cited Insurance Code sections and update citations in subsection (k) to §3.3708 and §3.3725 to conform with the amendments and repeal in this proposal.
In addition, amendments clarify language in the section by changing “chapter” to “title” in subsection (a), “address” to “website address” in subsection (b)(2), and “pursuant to” to “under” in subsections (b)(14)(B) and (m)(1), Also amendments to subsections (e), (i), (j), (l), and (n)(5) make changes to simplify the text addressing information on an insurer’s website by removing the words “internet” and “internet-based” and adding language using the term “website.”
Section 3.3707. Waiver Due to Failure to Contract in Local Markets. The proposed amendments to §3.3707 implement HB 3359 by updating the requirements for a finding of good cause for granting a waiver from network adequacy standards, subject to statutory limits in subsection (a); requiring that a waiver request include certain information including information demonstrating a good faith effort to contract (if providers are available) and describing any exclusivity arrangements or other external factors impacting the ability of the parties to contract in subsections (b) and (c); and clarifying the commissioner’s consideration of an access plan for waiver requests in subsection (c). The proposal specifies in subsections (b) and (c) that an insurer must use the process and electronic form specified in §3.3712 to file a waiver request and access plan, which will enable TDI to publish data on waivers as required by statute.
Additional amendments in subsections (b) and (d) require an insurer to use TDI’s electronic form to submit the evidence supporting the waiver request and mark the document as confidential if it contains proprietary information. Required documents must be submitted in SERFF, which makes filed information publicly available, unless the insurer marks a document as confidential. Proposed amendments in subsection (d) also remove the requirement for insurers to send notices of waiver requests to physicians and providers; instead, TDI will send notices to those providers in advance of a waiver hearing. Amendments to subsection (e) clarify the process for providers to respond to a waiver request.
An amendment to subsection (h) clarifies that TDI will specify the one-year period for which the waiver will apply and will post information relating to the waiver on its website, and an amendment to subsection (g) clarifies that an insurer may request to renew a waiver in conjunction with filing the annual report as required in §3.3709.
Existing subsections (i)(1) and (2) and (j) are deleted to conform with the proposed access plan requirements of this section and filing requirements in §3.3712; references in this section to “local market access plan” are changed to remove references to local markets to conform with the changes in HB 3359.
Amendments in the text of existing subsection (k) (which is redesignated as subsection (j)) and the text of new subsection (k) update the required processes that an insurer must develop to facilitate access to covered services, provide insureds with an option to obtain care without being subject to balance billing, and ensure that insureds understand what options they have when no in-network provider is reasonably available.
New subsection (m) replaces previous access plan requirements with the requirement that insurers submit a general access plan that will apply in any unforeseen circumstance where an insured is unable to access in-network care within the network adequacy standards.
Subsection (n) is deleted, as it is outdated in view of the proposed changes relating to network waivers in this section.
Also, an amendment to subsection (a) corrects an Insurance Code citation and adds the name of the cited section. In addition, amendments clarify language in the section by changing “in accord with” to “consistent with” in subsection (a) and “pursuant to” to “in accordance with” in subsections (g)(2) and (i).
Section 3.3708. Payment of Certain Basic Benefit Claims and Related Disclosures. Proposed amendments to §3.3708 remove existing subsections (a) and (b), which contain provisions invalidated by the TAHP Order and change the section title to replace “Basic Benefit” with “Out-of-Network” and to delete “and Related Disclosures.” This text is replaced by a new subsection (a) and (b). New subsection (a) provides payment standards for certain out-of-network claims and reflect balance billing protections, consistent with SB 2476 and SB 1264. New subsection (b) provides consumer protections for network gaps.
The proposal consolidates requirements for preferred and exclusive provider benefit plans by moving some provisions from §3.3725, which is proposed for repeal, to §3.3708. Subsection (d) is amended to clarify that exclusive provider benefit plans are exempt from certain payment requirements for out-of-network services, and references to “basic level of coverage” are updated to clarify that the term refers to out-of-network coverage.
Current subsection (e) is deleted, as it is no longer in effect. It is replaced by a new subsection (e), which implements HB 2002 by clarifying that an insurer must credit certain direct payments to nonpreferred providers towards the insured’s in-network cost-sharing maximums.
Existing subsection (f) is deleted because, with the other proposed changes, application of the section should no longer be limited to exclusive provider plans. The subsection is replaced by a new subsection (f), which implements HB 1647 by clarifying that insurers must cover certain clinician-administered drugs at the in-network benefit level.
Section 3.3709. Annual Network Adequacy Report. Proposed amendments to subsections (b) and (c) revise the text of the subsections to expand the content to be included in the annual network adequacy report, including requirements for insurer identifying information and information relating to network configuration, facility access, waiver requests and access plans, enrollee demographics, complaints, and actuarial data. An amendment to subsection (c)(4) also updates a reference to “basic benefits” to clarify that the term refers to out-of-network benefits.
Amendments to subsection (d) require that annual network adequacy reports be submitted to TDI via the SERFF system using the electronic form provided by TDI and remove the option to file the report via email.
Proposed amendments to subsection (a) restructure the language of the section for clarification.
Section 3.3710. Failure to Provide an Adequate Network. Proposed amendments to subsection (a) clarify the scope of the commissioner’s sanction authority. Additional amendments to subsection (a) add the titles of cited Insurance Code sections, remove references to the term “local market,” and change “and/or” to “and,” and amendments to subsections (a) and (b) change “pursuant to” to “under.”
Section 3.3711. Geographic Regions. Proposed amendments to §3.3711 replace the ZIP code listing with a county listing, based on the regional map available at www.hhs.texas.gov, consistent with the requirement in HB 3359 that service areas may not divide a county.
Section 3.3712. Network Configuration Filings. New §3.3712 implements HB 3359 by requiring submission of network configuration information. This information is currently addressed in §3.3722. Subsections (a) and (b) clarify that network configuration filings must be submitted in SERFF and are required in connection with a waiver request under §3.3707, an annual report under §3.3709, or an application or modification under §3.3722. Subsection (c) specifies that insurers must use TDI’s electronic forms when making network configuration filings and lists the information that must be included within the forms. The purposes of these electronic forms are to assist the insurer in demonstrating compliance with the network adequacy requirements contained in HB 3359 and to allow TDI to aggregate and publish information concerning networks and waivers consistent with Insurance Code §§1301.0055(a)(3), 1301.00565(g), and 1301.009. Subsection (d) clarifies that the submitted information is considered public information subject to publication by TDI.
Section 3.3713. County Classifications for Maximum Time and Distance Standards. New §3.3713 implements Insurance Code §1301.00553 as added by HB 3359, which specifies that counties are classified based on determinations made by the federal Centers for Medicare and Medicaid Services as of March 1, 2023. The new section lists each Texas county according to its classification as a large metro, metro, micro, or rural county, or a county with extreme access considerations.

Amending 28 TAC §§3.3720, 3.3722, 3.3723, to update network configuration filing requirements and change some of the language of the rule.

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIES
SUBCHAPTER X. PREFERRED AND EXCLUSIVE PROVIDER PLANS
28 TAC §§3.3720, 3.3722, 3.3723

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Section 3.3720. Preferred and Exclusive Provider Benefit Plan Requirements. The proposed amendments to §3.3720 update the titles of administrative code sections referenced in the section; revise an incorrect citation in the section; remove a reference to §3.3725, which is repealed by this proposal; add the title to a citation to the Insurance Code; and change “pursuant to” to “under.”
Section 3.3722. Application for Preferred and Exclusive Provider Benefit Plan Approval; Qualifying Examination; Network Modifications. The proposed amendments to §3.3722 implement HB 3359 by updating network configuration filing requirements and cross-references to conform to changes made in §§3.3038, 3.3707, 3.3708, and 3.3712, and the repeal of §3.3725. Requirements for network modifications are clarified to align with current practices.
Amendments to subsection (a) clarify that insurers must use the specified form to file an application for approval of a plan.
An amendment to subsection (b)(4) clarifies the rule text by changing passive voice to active voice.
Amendments to subsection (c) update references to service areas to refer to counties, consistent with HB 3359; update a reference to “medical peer review” to conform to statute; replace the listing of required network configuration information with a reference to proposed new §3.3712; replace citations to §3.3725, which is proposed for repeal; change “pursuant to” to “under”; and add titles to citations to the Insurance Code.
Amendments to subsection (d) clarify that the documents required for a qualifying examination must include network configuration information described in new §3.3712 that demonstrates network adequacy compliance. Amendments to subsection (d) also change “pursuant to” to “in accordance with” and “under.”
Amendments to subsection (e) add a reference to new §3.3712; require that for nonrenewals resulting from a service area reduction, insurers must comply with §3.3038, as amended in this proposal; and remove the requirement that insurers must comply with §3.3724 to receive approval of a service area expansion or reduction application for certain exclusive provider benefit plans.
Section 3.3723. Examinations. Proposed amendments to §3.3723 change “pursuant to” to “under” and “in accordance with” and “in accord with” to “in accordance with”; add the titles of cited Insurance Code, Administrative Code, and Occupations Code provisions; and add a citation to new §3.3712.

Amending 28 TAC §3.3725, to remove sections invalidated by the TAHP Order.

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIES
SUBCHAPTER X. PREFERRED AND EXCLUSIVE PROVIDER PLANS
28 TAC §3.3725

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposal repeals §3.3725 to conform with the proposed amendments to §3.3708 and to remove sections invalidated by the TAHP Order.

Texas Department of Aging and Disability Services

Proposed Rules Re:

Repealing 40 TAC §§3.401 – 3.404, to remove the rule concerning training for new employees, direct support professionals, and refresher training from DADS so they may be replaced by new rules under HHSC.

CHAPTER 3. RESPONSIBILITIES OF STATE FACILITIES
SUBCHAPTER D. TRAINING
40 TAC §§3.401 – 3.404

OVERVIEW

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 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 the repeal of rules in Title 40, Part 1, Chapter 3, Subchapter D, Training, comprising of §3.401, concerning Training for New Employees; §3.402, concerning Additional Training for Direct Support Professionals; §3.403, Refresher Training; and §3.404, Specialized Training for of a Forensic Facility Employee.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed repeals is to reflect the move of the state supported living centers from DADS to HHSC by moving HHSC rules from Texas Administrative Code (TAC) Title 40, Chapter 3, Subchapter D to 26 TAC Chapter 926 and consolidate HHSC rules. The new rules are proposed simultaneously elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

The repeal of 40 TAC Chapter 3, Subchapter D rules will delete the rules from 40 TAC and place updated rules in 26 TAC to reflect the transfer of functions from DADS to HHSC.