Texas Register February 17, 2023 Volume: 48 Number: 7

Texas Register Table of Contents

1 Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 Kristin L. Luckey appointed to the Podiatric Medical Examiners Advisory Board for a term to expire February 1, 2027.
2 Texas Health and Human Services Commission
3 Texas Department of Aging and Disability Services
- - 3.0.1 Proposed Rules Re:
4 Texas Board of Physical Therapy Examiners
- - 4.0.1 Adopted Rules Re:
    - 4.0.1.1 Amending 22 TAC §322.4, to add failing to respond to agency correspondence and failing to complete the requirements of an agreed order to the list of actions considered detrimental practice.
    - 4.0.1.2 Amending 22 TAC §337.2, regarding changing the board’s address on consumer informational signs.
5 Texas Department of State Health Services
- - 5.0.1 Adopted Rules Re:
  - 5.0.2 In Addition Re:

Governor

Appointments Re:

Kristin L. Luckey appointed to the Podiatric Medical Examiners Advisory Board for a term to expire February 1, 2027.

Appointed to the Podiatric Medical Examiners Advisory Board for a term to expire February 1, 2027, Kristin L. Luckey of Harlingen, Texas (replacing Amanda S. Nobles of Longview, who resigned).

Texas Health and Human Services Commission

Proposed Rules Re:

New 1 TAC §353.610, which establishes minimum performance standards for nursing facility providers that participate in the STAR+PLUS Program.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER G. STAR+PLUS
1 TAC §353.610

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §353.610, concerning Minimum Performance Standards for Nursing Facilities that Participate in the STAR+PLUS Program.

BACKGROUND AND JUSTIFICATION

The proposed new rule implements Texas Government Code §533.00251(h), added by House Bill 2658, 87th Legislature, Regular Session, 2021. Texas Government Code §533.00251 requires HHSC to establish minimum performance standards for nursing facility providers seeking to participate in the STAR+PLUS Medicaid managed care program. Subsection (h) directs HHSC to adopt rules establishing standards for nursing facility providers that participate in the STAR+PLUS Program; monitor provider performance in accordance with the standards and requiring corrective action, as HHSC determines necessary, from providers that do not meet the standards; and share data regarding the requirements with STAR+PLUS Medicaid managed care organizations, as appropriate.

SECTION-BY-SECTION SUMMARY

Proposed new §353.610(a) sets forth that the purpose of the rule is to establish minimum performance standards applicable to nursing facility providers that participate in the STAR+PLUS Program.
Proposed new §353.610(b) defines the terms used in the new rule, including “corrective actions,” “long stay quality measures,” “MDS–Minimum data set,” and “minimum performance standards.”
Proposed new §353.610(c) sets forth that HHSC establishes select Centers for Medicare & Medicaid Services nursing facility long stay quality measures from the minimum data set (MDS) and associated HHSC benchmarks as the minimum performance standards for evaluating the performance of a nursing facility and lists the specific measures and benchmarks that will be used as standards, including:
(1) N028.02 Percent of residents whose need for help with activities of daily living has increased. The benchmark is 30%. Nursing facilities do not meet the benchmark if HHSC determines that more than 30% of residents have an increased need for help with activities of daily living.
(2) N015.03 Percent of high-risk residents with pressure ulcers. The benchmark is 17%. Nursing facilities do not meet the benchmark if HHSC determines that more than 17% of high-risk residents have pressure ulcers.
(3) N016.03 Percent of residents assessed and appropriately given the seasonal influenza vaccine. The benchmark is 77%. Nursing facilities do not meet the benchmark if HHSC determines that less than 77% of residents were assessed and appropriately given the seasonal influenza vaccine.
(4) N020.02 Percent of residents assessed and appropriately given the pneumococcal vaccine. The benchmark is 80%. Nursing facilities do not meet the benchmark if HHSC determines that less than 80% of residents were assessed and appropriately given the pneumococcal vaccine.
(5) N035.03 Percent of residents whose ability to move independently worsened. The benchmark is 31%. Nursing facilities do not meet the benchmark if HHSC determines that more than 31% of the residents have a worsened ability to move independently.
The proposed new rule also sets forth that HHSC compares the performance of a nursing facility on each of the minimum performance standard measures to the associated HHSC benchmarks to determine if a facility meets or does not meet the required minimum performance standards. The proposed new rule also sets forth that HHSC makes the minimum performance standard measures and the associated HHSC benchmarks available on the HHSC website. The proposed new rule also sets forth that HHSC monitors the performance of a nursing facility on an annual basis in accordance with the minimum performance standard measures and the associated HHSC benchmarks and may require a nursing facility that does not meet the minimum performance standard benchmarks to take corrective actions. The proposed new rule also sets forth that HHSC monitors a nursing facility that has been required to initiate corrective actions in accordance with the minimum performance standard measures and the associated HHSC benchmarks and follows up with the nursing facility regarding its performance, as appropriate.
Proposed new §353.610(d) sets forth that HHSC will share minimum performance standards data results with STAR+PLUS Managed Care Organizations (MCOs), as appropriate; and that STAR+PLUS MCOs may act on the data, as appropriate.

New 26 TAC §565.2, §565.3, concerning purpose, scope, and definitions for the Home and Community-based programs.

CHAPTER 565. HOME AND COMMUNITY-BASED (HCS) PROGRAM [AND COMMUNITY FIRST CHOICE (CFC)] CERTIFICATION STANDARDS
SUBCHAPTER B. OVERVIEW
26 TAC §565.2, §565.3

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §§565.2, 565.3, 565.5, 565.7, 565.9, 565.11, 565.13, 565.15. 565.17, 565.19, 565.21, 565.23, 565.25, 565.27, 565.29, 565.31, 565.33, 565.35, 565.37, 565.39, 565.41, 565.43, 565.47, and 565.49 in Title 26 Texas Administrative Code Chapter 565, Home and Community-Based Services (HCS) Program and Community First Choice (CFC) Certification Standards.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to draft new rules that describe the regulatory certification standards for HCS Medicaid waiver program providers. Currently, rules describing HCS certification principles and rules regarding regulatory processes for HCS waiver program providers are in Title 40, Chapter 9, Subchapter D of the Texas Administrative Code.

The proposed rules describe certification standards regarding service delivery, rights of individuals, requirements related to abuse, neglect, and exploitation, staff member and service providers’ requirements, and quality assurance. The proposed rules also include new requirements for emergency preparedness, fire drills, and evacuation drills in all residential types in the HCS program. Current requirements listed on the waiver survey and certification checklist that are not currently in rule are included in the proposed rules. The proposed rules set forth recommendations for increased oversight of HCS host home/companion care homes, clarify restraint and seclusion requirements, and add language for obtaining and using enclosed beds. The proposed rules also modify HHSC surveyor requirements to allow for survey flexibility as the HCS waiver program evolves.

The proposed rules reflect stakeholder engagement over the past two years.

SECTION-BY-SECTION SUMMARY

Proposed new sections listed in this paragraph replace and update rules in 40 TAC, Part 1, Chapter 9, Subchapter D, concerning Home and Community-based Services (HCS) Program. Sections 9.153, 9.171 – 9.175, 9.177 – 9.180, 9.182, 9.183, 9.187, and 9.188 are proposed for repeal elsewhere in this issue of the Texas Register.
The proposal changes the title of Chapter 565 from Home And Community-Based (HCS) Program and Community First Choice (CFC) Certification Standards to Home and Community-Based Services (HCS) Program Certification Standards.
Proposed new Subchapter B, Overview includes §565.2, Purpose, and §565.3, Definitions.
Proposed new §565.2, Purpose, describes the purpose and scope of the Home and Community-based program.
Proposed new §565.3, Definitions, describes terms used in the Home and Community-based program as it relates to Long-term Care Regulation and the Certification Standards.

New 26 TAC §565.5, regarding individual’s rights in HCS programs and program providers’ responsibility to ensure those rights are exercised.

CHAPTER 565. HOME AND COMMUNITY-BASED (HCS) PROGRAM [AND COMMUNITY FIRST CHOICE (CFC)] CERTIFICATION STANDARDS
SUBCHAPTER C. CERTIFICATION STANDARDS: INDIVIDUAL’S RIGHTS
26 TAC §565.5

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed rules reflect stakeholder engagement over the past two years.

SECTION-BY-SECTION SUMMARY

Proposed new Subchapter C, Certification Standards: Individual’s Rights, includes §565.5, Rights of Individuals.
Proposed new §565.5 Rights of Individuals, describes individual’s rights in HCS programs and program providers’ responsibility to ensure those rights are exercised.

New 26 TAC §565.7, §565.9, describing the hiring requirements and program provider requirements.

CHAPTER 565. HOME AND COMMUNITY-BASED (HCS) PROGRAM [AND COMMUNITY FIRST CHOICE (CFC)] CERTIFICATION STANDARDS
SUBCHAPTER D. CERTIFICATION STANDARDS: STAFF MEMBER AND SERVICE
26 TAC §565.7, §565.9

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed rules reflect stakeholder engagement over the past two years.

SECTION-BY-SECTION SUMMARY

Proposed new Subchapter D, Certification Standards: Staff member and Service Provider Requirements, includes §565.7, Staff Member and Service Provider Requirements; and §565.9, Program Provider Requirements.
Proposed new §565.7, Staff Member and Service Provider Requirements, describes the hiring requirements for a staff member and service provider of program providers.
Proposed new §565.9, Program Provider Requirements, describes the required registry checks program providers must perform on staff members and service providers.

New 26 TAC §§565.11, 565.13, 565.15, 565.17, 565.19, 565.21, concerning service delivery and pre-enrollment minor modifications.

CHAPTER 565. HOME AND COMMUNITY-BASED (HCS) PROGRAM [AND COMMUNITY FIRST CHOICE (CFC)] CERTIFICATION STANDARDS
SUBCHAPTER E. CERTIFICATION STANDARDS: SERVICE DELIVERY
26 TAC §§565.11, 565.13, 565.15, 565.17, 565.19, 565.21

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed rules reflect stakeholder engagement over the past two years.

SECTION-BY-SECTION SUMMARY

Proposed new Subchapter E, Certification Standards: Service Delivery, includes §565.11, Service Delivery; §565.13, Nursing; §565.15, Individuals under the age of 22; §565.17, Pre-enrollment Minor Home Modification; §565.19, Community First Choice (CFC) Emergency Response Systems (ERS) Services; and §565.21, Transitional Assistance Service (TAS).
Proposed new §565.11, Service Delivery, describes the services available to an individual and how providers should deliver them, documentation program providers must maintain, instructions for back up plans, and suspension of services.
Proposed new §565.13, Nursing, describes the nursing services and how to deliver them along with instructions for the comprehensive nursing assessment. Proposed new §565.15, Individuals under the age of 22, describes additional requirements related to individuals who are under the age of 22.
Proposed new §565.17, Pre-enrollment Minor Home Modification, outlines mobility and accessibility requirements and minor home modifications.
Proposed new §565.19, Community First Choice (CFC) Emergency Response Systems (ERS) Services, details the criteria for services, how to deliver it, and installing/testing instructions.
Proposed new §565.21, Transitional Assistance Service (TAS), describes the TAS service and instructions for how to provide the service.

New 26 TAC §§565.23, 565.25, 565.27, 565.29, 565.31, 565.33, 565.35, 565.37, 565.39, regarding quality assurance and residential requirements.

CHAPTER 565. HOME AND COMMUNITY-BASED (HCS) PROGRAM [AND COMMUNITY FIRST CHOICE (CFC)] CERTIFICATION STANDARDS
SUBCHAPTER F. CERTIFICATION STANDARDS: QUALITY ASSURANCE
26 TAC §§565.23, 565.25, 565.27, 565.29, 565.31, 565.33, 565.35, 565.37, 565.39

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed rules reflect stakeholder engagement over the past two years.

SECTION-BY-SECTION SUMMARY

Proposed new Subchapter F, Certification Standards: Quality Assurance, includes §565.23, Residential Requirements; §565.25, Programmatic Requirements; §565.27, Finances and Rent; §565.29, Behavior Support Plan; §565.31, Requirements Related to Abuse, Neglect, and Exploitation; §565.33, Restraint; §565.35, Enclosed Beds; §565.37, Protective Devices; and §565.39 Prohibitions
Proposed new §565.23, Residential Requirements, describes the program providers’ responsibilities for upkeep and maintenance of the residences. Requirements address outside areas, floors, walls and ceilings, kitchen, bathroom, and storage of chemicals and toxins. Requirements also include conditions for means of egress, emergency response plans, infection control, medication administration, fire extinguishers, and fire drills.
Proposed new §565.25, Programmatic Requirements, outlines the inspections program providers must do before an individual moves into a residence, reporting requirements for an individual’s death and critical incidents, identification of an alternate contact to the Chief Executive Officer, retaliation prohibitions, and annual reviews.
Proposed new §565.27, Finances and Rent, establishes how program providers should charge an individual for rent and board in a three and four-person residence, how program providers should manage an individual’s funds if they’re the payee, and restrictions on what program providers cannot charge the individual.
Proposed new §565.29, Behavior Support Plan, outlines the process for obtaining a behavior support plan for an individual.
Proposed new §565.31, Requirements Related to Abuse, Neglect, and Exploitation, outlines program providers’ responsibilities for documenting, reporting, and ensuring safety of the individual when incidents of abuse, neglect, and exploitation occur.
Proposed new §565.33, Restraints, describes when program providers may use restraint and when they must not use restraint, including required assessments, documentation, and notifications when restraint is used.
Proposed new §565.35, Enclosed Beds, describes program providers’ responsibilities if they allow an individual to use an enclosed bed in a residence and the end date for all enclosed beds.
Proposed new §565.37, Protective Devices, describes program providers’ responsibilities when implementing the use of protective devices, including required documentation and assessments.
Proposed new §565.39, Prohibitions, states that program providers must not use seclusion or an enclosed bed for behavioral management.

New 26 TAC §§565.41, 565.43, 565.47, 565.49, which includes HHSC surveys for service providers, methods for approval of four-person residences, and corrective actions.

CHAPTER 565. HOME AND COMMUNITY-BASED (HCS) PROGRAM [AND COMMUNITY FIRST CHOICE (CFC)] CERTIFICATION STANDARDS
SUBCHAPTER G. HHSC ACTIONS
26 TAC §§565.41, 565.43, 565.47, 565.49

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed rules reflect stakeholder engagement over the past two years.

SECTION-BY-SECTION SUMMARY

Proposed new Subchapter G, HHSC Actions, includes §565.41, HHSC Surveys of a Program Provider; §565.43, HHSC Approval of Four-Person Residences; §565.47, Amelioration; and §565.49, Program Provider Compliance and Corrective Action.
Proposed new §565.41, HHSC Surveys of a Program Provider, lists the type and frequency of surveys conducted by HHSC.
Proposed new §565.43, HHSC Approval of Four-Person Residences, describes how to obtain approval of a four-person residence.
Proposed new §565.47, Amelioration, allows HHSC to give program providers the opportunity for amelioration, in lieu of an administrative penalty for a violation. The proposed rule describes the circumstances under which program providers are, and are not, allowed the opportunity for amelioration and requirements for program providers seeking amelioration. The proposed rule requires HHSC to notify program providers regarding plan approval, or payment if a plan is denied, and it allows program providers to appeal the administrative penalty in accordance with 40 TAC §49.541 (relating to Contractor’s Right to Appeal).
Proposed new §565.49, Program Provider Compliance and Corrective Action, outlines the requirements of HHSC, if it determines that program providers are, or are not, in compliance with the certification standards. The proposed rule requires program providers to submit a plan of correction for each concern identified by HHSC and outlines what happens if the plan needs to be revised, or if it is approved or not approved, and it details follow-up steps. The proposed rule describes administrative penalties for critical violations and HHSC’s responsibilities in conducting surveys and citing program providers for violation of a certification standards.

Adopted Rules Re:

Amending 1 TAC §372.354 to exclude the full amount of one prepaid burial insurance policy, funeral plan or funeral agreement for each household member as a resource when determining TANF eligibility.

CHAPTER 372. TEMPORARY ASSISTANCE FOR NEEDY FAMILIES AND SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAMS
SUBCHAPTER B. ELIGIBILITY
1 TAC §372.354

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §372.354, concerning Treatment of Resources in TANF. The amendment to §372.354 is adopted without changes to the proposed text as published in the October 14, 2022, issue of the Texas Register (47 TexReg 6708). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment is necessary to align policy regarding the treatment of prepaid burial insurance policies and prepaid funeral plans (referred to collectively as “funeral agreements”) for the Temporary Assistance for Needy Families (TANF) program with recently changed resource policy under the Supplemental Nutrition Assistance Program (SNAP). HHSC is excluding the full amount of funeral agreements as a resource when determining eligibility for TANF. HHSC is also excluding the value of one burial plot per household member.

Amending 1 TAC §372.957, to change to 36-month certification period to apply to eligible households containing all elderly or disabled members and removing language about the SNAP Supplemental Security Income waiver.

CHAPTER 372. TEMPORARY ASSISTANCE FOR NEEDY FAMILIES AND SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAMS
SUBCHAPTER D. APPLICATION PROCESS
1 TAC §372.957

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §372.957, concerning Periodic Eligibility Review. The amendment to §372.957 is adopted without changes to the proposed text as published in the October 21, 2022, issue of the Texas Register (47 TexReg 6952). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment is necessary to align the section with the implementation of Senate Bill (S.B.) 224, 87th Legislature, Regular Session, 2021, which required HHSC to simplify certification and recertification requirements for eligible households in which all members are elderly (60 years of age or older) or disabled and have no earned income who are certified on or after September 1, 2021.

New 26 TAC §§260.5, 260.7, 260.9, defining terms used in the new chapter, describing the DBMD Program and CFC Option, and outlining excluded services.

CHAPTER 260. DEAF BLIND WITH MULTIPLE DISABILITIES (DBMD) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES
SUBCHAPTER A. DEFINITIONS, DESCRIPTION OF SERVICES, AND EXCLUDED SERVICES
26 TAC §§260.5, 260.7, 260.9

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in the Texas Administrative Code (TAC), Title 26, Part 1, new Chapter 260, Deaf Blind with Multiple Disabilities , Subchapters A – H, composed of §§260.5, 260.7, 260.9, 260.51, 260.53, 260.55, 260.57, 260.59, 260.61, 260.63, 260.65, 260.67, 260.69, 260.71, 260.73, 260.75, 260.77, 260.79, 260.81, 260.83, 260.85, 260.87, 260.89, 260.101, 260.103, 260.105, 260.107, 260.109, 260.111, 260.113, 260.151, 260.201, 260.203, 260.205, 260.207, 260.209, 260.211, 260.213, 260.215, 260.217, 260.219, 260.221, 260.223, 260.251, 260.253, 260.255, 260.257, 260.259, 260.261, 260.263, 260.265, 260.267, 260.269, 260.271, 260.301, 260.303, 260.305, 260.307, 260.309, 260.311, 260.313, 260.315, 260.317, 260.319, 260.321, 260.323, 260.325, 260.327, 260.329, 260.331, 260.333, 260.335, 260.337, 260.339, 260.341, 260.343, 260.345, 260.347, 260.349, 260.351, 260.353, 260.355, 260.357, 260.359, 260.401, 260.403, and 260.451.

Sections 260.5, 260.59, 260.61, 260.67, 260.207, 260.351, 260.401, and 260.403 are adopted with changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5567). These rules will be republished.

Sections 260.7, 260.9, 260.51, 260.53, 260.55, 260.57, 260.63, 260.65, 260.69, 260.71, 260.73, 260.75, 260.77, 260.79, 260.81, 260.83, 260.85, 260.87, 260.89, 260.101, 260.103, 260.105, 260.107, 260.109, 260.111, 260.113, 260.151, 260.201, 260.203, 260.205, 260.209, 260.211, 260.213, 260.215, 260.217, 260.219, 260.221, 260.223, 260.251, 260.253, 260.255, 260.257, 260.259, 260.261, 260.263, 260.265, 260.267, 260.269, 260.271, 260.301, 260.303, 260.305, 260.307, 260.309, 260.311, 260.313, 260.315, 260.317, 260.319, 260.321, 260.323, 260.325, 260.327, 260.329, 260.331, 260.333, 260.335, 260.337, 260.339, 260.341, 260.343, 260.345, 260.347, 260.349, 260.353, 260.355, 260.357, 260.359, and 260.451 are adopted without changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5567). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The Deaf Blind with Multiple Disabilities (DBMD) Program is a Medicaid waiver program approved by the Centers for Medicare & Medicaid Services (CMS) under §1915(c) of the Social Security Act. This waiver program provides community-based services and supports to eligible individuals as an alternative to services provided in an institutional setting. In the DBMD Program, an individual chooses a program provider who delivers both case management and direct services.

The adopted rules move the DBMD Program rules from Texas Administrative Code (TAC), Title 40 (40 TAC), Chapter 42, to TAC, Title 26 (26 TAC), Chapter 260. The repeal of 40 TAC, Chapter 42, is adopted elsewhere in this issue of the Texas Register.

The adopted rules are necessary to comply with Title 42, Code of Federal Regulations (CFR), Chapter IV, Subchapter C, Part 441, Subpart G, §441.301(c)(1) – (5). In 2014, CMS amended this regulation to establish new requirements for Home and Community-based Services (HCBS) Medicaid programs, including requirements for HCBS program settings and person-centered planning. CMS has given states until March 2023 to fully comply with the requirements in § 441.301(c)(1) – (5). The adopted rules ensure compliance with the requirements in 42 CFR, Part 441, Chapter IV, Subchapter C, Subpart K, §441.530, regarding Home and Community-Based Setting, and §441.540 regarding Person-centered service plan for Community First Choice (CFC) services because CFC services are available to clients enrolled in the DBMD Program.