Texas Register February 18, 2022 Volume: 47 Number: 7

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed Elida Munoz to the Family Practice Residency Advisory Committee.
2 Office of the Attorney General
- - 2.0.1 Requests for Opinions Re:
    - 2.0.1.1 Executive Director of the Texas Behavioral Health Executive Council requests an opinion regarding the authority of the Behavioral Health Executive Council to repeal certain rules.
3 Health and Human Services Commission
4 Texas Board of Nursing
- - 4.0.1 Proposed Rules Re:
    - 4.0.1.1 Amending 22 TAC §217.6 to exempt certain military spouse applicants from paying late fees and fines associated with a reactivation application.
5 Texas State Board of Examiners of Psychologists
- - 5.0.1 Adopted Rules Re:
    - 5.0.1.1 Amending 22 TAC §465.13 to require licensees to refrain from entering into a professional relationship where another relationship is likely to cause harm or impair the licensee’s objectivity.
6 Texas State Board of Examiners of Professional Counselors
- - 6.0.1 Adopted Rules Re:
7 Texas Behavioral Health Executive Council
- - 7.0.1 Adopted Rules Re:
8 Texas Board of Occupational Therapy Examiners
- - 8.0.1 Adopted Rules Re:
    - 8.0.1.1 Amending 40 TAC §§367.1 – 367.3 to revise current continuing education requirements and add activities eligible for continuing education credit.
    - 8.0.1.2 New 40 TAC §370.4, adding language regarding the delegation of Board authority to certain staff to administratively suspend or refuse to renew a license.
9 Department of Aging and Disability Services
- - 9.0.1 In Addition Re:
    - 9.0.1.1 Correcting an error related to the adopted amendments to 40 TAC §45.211, which concerns the enrollment process for community living assistance and support services and community first choice services.
10 Department of State Health Services
- - 10.0.1 In Addition Re:
    - 10.0.1.1 Licensing Actions for Radioactive Materials

The Governor

Appointments Re:

The Governor appointed Elida Munoz to the Family Practice Residency Advisory Committee.

Appointments for February 8, 2022

Appointed to the Family Practice Residency Advisory Committee for a term to expire August 31, 2024, Elida Munoz of Farmers Branch, Texas (replacing Ruth S. Chamber of New Braunfels, whose term expired).

Office of the Attorney General

Requests for Opinions Re:

Executive Director of the Texas Behavioral Health Executive Council requests an opinion regarding the authority of the Behavioral Health Executive Council to repeal certain rules.

Requestor:

Mr. Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

333 Guadalupe, Suite 3-900

Austin, Texas 78701

Re: Authority of the Behavioral Health Executive Council to repeal rules under Government Code section 507.153(a) (RQ-0445-KP)

Briefs requested by March 4, 2022

For further information, please access the website at www.texasattorneygeneral.gov or call the Opinion Committee at (512) 463-2110.

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §500.21, detailing ESRD facility regulatory guidelines regarding staffing ratios, in-home visits, telemedicine, incident reporting, and education and training requirements for staff.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER B. END STAGE RENAL DISEASE FACILITIES
26 TAC §500.21

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 500 COVID-19 Emergency Health Care Facility Licensing, new §500.21, concerning an emergency rule in response to COVID-19 in order to update and continue the regulatory requirements for end stage renal disease (ESRD) facilities to reduce barriers to treatment during the COVID-19 pandemic.

HHSC is adopting an emergency rule to reduce barriers to treatment for dialysis patients by updating ESRD facility regulatory guidelines regarding staffing ratios, in-home visits, telemedicine, incident reporting, and education and training requirements for staff.

BACKGROUND AND JUSTIFICATION

The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020 proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this rule for ESRD Facility Requirements During the COVID-19 Pandemic.

As authorized by Texas Government Code §2001.034, HHSC may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

Renewing 26 TAC §§500.41 – 500.44 to adjust operational requirements for Chemical Dependency Treatment Facilities to address staff shortages, reduce the risk of transmission of COVID-19, and reduce barriers to treatment for patients.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER D. CHEMICAL DEPENDENCY TREATMENT FACILITIES
26 TAC §§500.41 – 500.44

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency new §§500.41 – 500.44 for a 60-day period. The text of the emergency rule was originally published in the October 22, 2021, issue of the Texas Register (46 Tex Reg 7110).

HHSC is renewing emergency rules to temporarily adjust CDTF operational requirements to: (1) permit a licensed CDTF to provide telehealth and telemedicine treatment services to clients in order to reduce the risk of transmission of COVID-19; (2) permit an intensive residential program in a CDTF to increase counselor caseloads from 10 to 20 clients per counselor due to CDTF staff shortages; (3) permit a licensed CDTF to provide treatment services through two- way, real-time internet or telephone communications to clients in order to reduce the risk of transmission of COVID-19; and (4) extend treatment planning and service provision documentation deadlines to provide CDTFs additional time to document service delivery, as counselor caseloads may have increased in intensive residential treatment programs. These emergency rules will address staff shortages, reduce the risk of transmission of COVID-19, and reduce barriers to treatment for patients seeking treatment for substance use disorders and chemical dependency.

BACKGROUND AND JUSTIFICATION

Renewing 26 TAC §500.51 to permit supervision of licensed chemical dependency counselor (LCDC) interns through the use of two-way, real-time internet or telephone communications.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER E. LICENSED CHEMICAL DEPENDENCY COUNSELORS
26 TAC §500.51

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency new §500.51 for a 60-day period. The text of the emergency rule was originally published in the October 22, 2021, issue of the Texas Register (46 Tex Reg 7112).

HHSC is renewing an emergency rule to temporarily permit: (1) counselor interns with more than 1,000 hours of supervised work experience to provide services in person or through two-way, real-time internet or telephone communications; (2) supervisors of LCDC interns with less than 2,000 hours of supervised work experience to provide supervision in person or through two-way, real-time internet or telephone communications; and (3) a certified clinical supervisor, or the clinical training institution coordinator or intern’s supervising qualified credentialed counselor at a clinical training institution, to provide supervision to a counselor intern using two-way, real-time internet or telephone communications to observe and document the intern performing assigned activities and to provide and document one hour of face-to-face individual or group supervision. This emergency rule will address staff shortages, reduce the risk of transmission of COVID-19 and reduce barriers to treatment for patients seeking treatment for substance use disorders and chemical dependency.

BACKGROUND AND JUSTIFICATION

The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020 proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for Supervision of LCDC Interns During the COVID-19 Pandemic.

Adopted Rules Re:

Amending 1 TAC §355.108 and §355.109 to clarify how the agency calculates reimbursement rate adjustments in response to inflation and payroll tax rate changes.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER A. COST DETERMINATION PROCESS
1 TAC §355.108, §355.109

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.108, concerning Determination of Inflation Indices, and §355.109, concerning Adjusting Reimbursement When New Legislation, Regulations, or Economic Factors Affect Costs. The amendments to §355.108 and §355.109 are adopted without changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6002). The rules will not be republished.

BACKGROUND AND JUSTIFICATION

The purpose of the amendments is to clarify how the agency calculates reimbursement rate adjustments in response to inflation and payroll tax rate changes. The inflation methodologies pertaining to the adopted amendments are used to calculate payment rates for long-term services and supports programs. Calculating rates of inflation and applying them to appropriate costs allows HHSC to account for economic inflation between one time period to the next when estimating the costs of rate changes implemented by the Legislature, calculating periodic rate changes such as biennial fee reviews, establishing rates for new programs, and completing other special analyses.

Amending 26 TAC §551.2 and §551.3 to update the fee schedule and definitions relating to intermediate care facilities for individuals with an intellectual disability or related conditions.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER A. INTRODUCTION
26 TAC §551.2, §551.3

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§551.2, 551.3, 551.11 – 551.22, 551.42 – 551.45, 551.50, 551.60 – 551.73, 551.75, 551.191, 551.192, 551.212 – 551.215, 551.231 – 551.241, 551.281, 551.283, 551.285 – 551.287, 551.321, 551.323, 551.324, 551.326, and 551.327; and the repeal of §551.217 and §551.284, in Texas Administrative Code (TAC), Title 26, Part 1, Chapter 551, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions.

The amendments to §§551.2, 551.3, 551.11 – 551.22, 551.42 – 551.45, 551.50, 551.60 – 551.73, 551.75, 551.191, 551.192, 551.212 – 551.215, 551.231 – 551.233, 551.235 – 551.241, 551.281, 551.283, 551.285 – 551.287, 551.321, 551.323, 551.324, 551.326, and 551.327; and the repeal of §551.217 and §551.284, are adopted without changes to the proposed text as published in the November 26, 2021, issue of the Texas Register (46 Tex Reg 7958). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments and repeals are necessary to implement the changes made to Texas Health and Safety Code, Chapter 81, by House Bill (H.B.) 1848, 86th Legislature, Regular Session, 2019, and changes made to Texas Health and Safety Code, Chapter 252, by H.B. 3720, 87th Legislature, Regular Session, 2021. H.B. 1848 amended the requirements of a long-term care facility’s infection prevention and control program to add monitoring key infectious agents including multidrug-resistant organisms and procedures for making rapid influenza diagnostic tests available to facility residents. H.B. 3720 set the maximum amount of an administrative penalty that can be assessed for an on-site regulatory visit or complaint investigation, regardless of the duration of any ongoing violations.

Additionally, the amendments and repeals reflect the transition from paper applications to the use of the online licensure portal, called the Texas Unified Licensure Information Portal (TULIP), and clarify other processes relating to licensure. The amendments and repeals also update rule language to reflect the administrative transfer of the rules from 40 TAC Chapter 90 and the change of regulating agency from the Department of Aging and Disability Services to HHSC.

Amending 26 TAC §§551.11 – 551.22 to update application procedures related to approval of Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER B. APPLICATION PROCEDURES
26 TAC §§551.11 – 551.22

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §§551.42 – 551.45, 551.50 to clarify standards for licensure and other training requirements for intermediate care facilities for individuals with an intellectual disability or related conditions.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER C. STANDARDS FOR LICENSURE
26 TAC §§551.42 – 551.45, 551.50

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §551.191, §551.192 to update procedural requirements for inspections, surveys, and visits related to intermediate care facilities for individuals with an intellectual disability or related conditions.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER F. INSPECTIONS, SURVEYS, AND VISITS
26 TAC §551.191, §551.192

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §§551.212 – 551.215 and repealing §551.217 to clarify reporting requirements related to abuse, neglect, and exploitation for intermediate care facilities for individuals with an intellectual disability or related conditions.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER G. ABUSE, NEGLECT, AND EXPLOITATION; COMPLAINT AND INCIDENT REPORTS AND INVESTIGATIONS
26 TAC §§551.212 – 551.215, 551.217

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §§551.231 – 551.241 to clarify enforcement mechanisms for intermediate care facilities for individuals with an intellectual disability or related conditions.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER H. ENFORCEMENT
26 TAC §§551.231 – 551.241

OVERVIEW

The amendments to §551.234 are adopted with changes to the proposed text as published in the November 26, 2021, issue of the Texas Register (45 TexReg 7958). This rule will be republished.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §§551.281, 551.283 – 551.287 to describe respite care requirements for intermediate care facilities for individuals with an intellectual disability or related conditions.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER J. RESPITE CARE
26 TAC §§551.281, 551.283 – 551.287

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §§551.321, 551.323, 551.324, 551.326, and 551.327 to update requirements for individuals with an intellectual disability or related conditions.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER L. PROVISIONS APPLICABLE TO FACILITIES GENERALLY
26 TAC §§551.321, 551.323, 551.324, 551.326, 551.327

OVERVIEW

BACKGROUND AND JUSTIFICATION

In Addition Re:

Public Notice – Texas State Plan Amendment to Allow Advance Telecommunications for Physicians’ and Dentists’ Services and Targeted Case Management for individuals with Chronic Mental Illness

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan to allow the use of advance telecommunications for Physicians’ and Dentists’ Services and Targeted Case Management for individuals with Chronic Mental Illness under Title XIX of the Social Security Act. The proposed amendment is effective April 1, 2022.

BACKGROUND AND JUSTIFICATION

The purpose of this amendment, Transmittal Number 22-0005, seeks to ensure that Medicaid recipients, child health plan program enrollees, and other individuals receiving benefits under a public benefits program administered by HHSC, regardless of the delivery model, have the option to receive certain services using advanced telecommunications.

Interested parties may obtain additional information and/or a free copy of the proposed amendments by contacting Shae James, State Plan Coordinator, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; or by email at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of proposed amendment will be available for review at the local county offices of HHSC, (which were formerly the local offices of Texas Department of Aging and Disability Services).

Public Notice – Texas State Plan for Medical Assistance Amendment

OVERVIEW

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.

BACKGROUND AND JUSTIFICATION

The purpose of the amendment is to make clarifying revisions to the inflation projection methodology for the DAHS, HCBS, Intermediate Care Facilities for Individuals with an Intellectual Disability (ICF/IID), NF, and PHC programs. A revision will also be made to the nursing wage inflation methodology, which will affect only the DAHS, HCBS, ICF/IID, and NF programs.

The proposed amendments are effective March 1, 2022.

DETAILS

Information about the proposed changes can be found in the September 17, 2021, issue of the Texas Register (46 TxReg 6002) at http://www.sos.state.tx.us/texreg/index.shtml.

Interested parties may obtain additional information or a free copy of the proposed amendments from Holly Freed, State Plan Team Lead, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, TX 78711; by telephone at (512) 428-1932; by facsimile at (512) 730-7472; or by email at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposed amendments will be available for review at the local county offices of HHSC, (which were formerly the local offices of the Texas Department of Aging and Disability Services).

Public Notice – Texas State Plan for Medical Assistance Amendment for EPSDT Transportation

OVERVIEW

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.

BACKGROUND AND JUSTIFICATION

The purpose of the amendment is to amend the Early and Periodic Screening, Diagnosis and Treatment (EPSDT), Prescribed Pediatric Extended Care Centers (PPECC) transportation rate to align with the HHSC PPECC biennial fee review. The proposed amendment is effective March 1, 2022.

Interested parties may obtain additional information or a free copy of the proposed amendments by Holly Freed, State Plan Team Lead, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; by telephone at (512) 428-1932; by facsimile at (512) 730-7472; or by email at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposed amendments will be available for review at the local county offices of HHSC, (which were formerly the local offices of the Texas Department of Aging and Disability Services).

Texas Board of Nursing

Proposed Rules Re:

Amending 22 TAC §217.6 to exempt certain military spouse applicants from paying late fees and fines associated with a reactivation application.

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE
22 TAC §217.6

OVERVIEW

The Texas Board of Nursing (Board) proposes amendments to §217.6(j), relating to Failure to Renew License. The amendments are being proposed under the authority of the Occupations Code §301.151.

Proposed amended §217.6(j) provides that a military spouse applicant may be exempt from paying late fees and fines associated with a reactivation application if the applicant submits to the Board: a completed reactivation application submitted through the Texas Nurse Portal accessible through the Board’s website, and documentation, also submitted through the Texas Nurse Portal accessible through the Board’s website, showing that the applicant is the spouse of an individual serving on active duty as a member of the armed forces of the United States.

BACKGROUND AND JUSTIFICATION

On June 15, 2020, the Board launched the Texas Nurse Portal. The Texas Nurse Portal is a paperless, online system that allows individuals to apply for nurse licensure by examination, endorsement, or renewal. In an effort to continue moving the Board’s work flow to a paperless system, the proposed amendments require the reactivation application and supporting documentation for a military spouse applicant to be submitted online through the Texas Nurse Portal.

Texas State Board of Examiners of Psychologists

Adopted Rules Re:

Amending 22 TAC §465.13 to require licensees to refrain from entering into a professional relationship where another relationship is likely to cause harm or impair the licensee’s objectivity.

CHAPTER 465. RULES OF PRACTICE
22 TAC §465.13

OVERVIEW

The Texas Behavioral Health Executive Council adopts amendments to §465.13, relating to Personal Problems, Conflicts, and Dual Relationship. Section 465.13 is adopted without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 Tex Reg 6472) and will not be republished.

BACKGROUND AND JUSTIFICATION

Currently the rule requires licensees to refrain from entering into a professional relationship where another relationship is likely to cause harm or impair the licensee’s objectivity. Additionally, licensees must withdraw from a professional relationship if another relationship exists that is likely to cause harm or impair the licensee’s objectivity. The amended rule is intended to clarify these requirements, that when a licensee conducts the practice of psychology the licensee must do so with the best interest of the recipient of those services in mind.

Texas State Board of Examiners of Professional Counselors

Adopted Rules Re:

Amending 22 TAC §681.2 to clarify the definition of art therapy, provide a definition for the term independent practice, and fix a typographical error.

CHAPTER 681. PROFESSIONAL COUNSELORS
SUBCHAPTER A. GENERAL PROVISIONS
22 TAC §681.2

OVERVIEW

The Texas Behavioral Health Executive Council adopts amendments to §681.2, relating to Definitions. Section 681.2 is adopted without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 Tex Reg 6479) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment to §681.2 is intended to provide clarity to the definition of art therapy and correct a typographical error. The amended rule also provides a definition for the term independent practice, which is defined as the practice of providing professional counseling services to a client without the supervision of an LPC-S.

Amending 22 TAC §681.91 to update application and licensing standards for professional counselors.

CHAPTER 681. PROFESSIONAL COUNSELORS
SUBCHAPTER C. APPLICATION AND LICENSING
22 TAC §681.91

OVERVIEW

The Texas Behavioral Health Executive Council adopts amendments to §681.91, relating to LPC Associate License. Section 681.91 is adopted with changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 Tex Reg 6481) and will be republished below. In response to public comment, a typographical error was identified in the proposed version of §681.91(m), the word “including” was inadvertently struck through and the Council is adopting the rule with this word added back to correct this grammatical mistake.

BACKGROUND AND JUSTIFICATION

The amended rule still requires an LPC-Associate to only practice professional counseling under the supervision of an LPC-S, but the amended rule no longer prohibits LPC-Associates from owning their own business or accepting direct payment. The amended rule will allow for the supervision arrangements between an LPC-Associate and LPC-S to be one of a direct employee, independent contractor, or any other legal arrangement the parties agree to. The amended rule also clarifies how LPC-Associates must represent themselves, and which licensee is responsible for the retention and maintenance of client records.

Amending 22 TAC §681.93 to update supervisor requirements.

CHAPTER 681. PROFESSIONAL COUNSELORS
SUBCHAPTER C. APPLICATION AND LICENSING
22 TAC §681.93

OVERVIEW

The Texas Behavioral Health Executive Council adopts amendments to §681.93, relating to Supervisor Requirements. Section 681.93 is adopted without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 Tex Reg 6483) and will not be republished.

BACKGROUND AND JUSTIFICATION

The Council is no longer mailing renewal permits; verification of licensure status is done online. The amended rule will reduce regulatory burden by allowing the supervisor to print and keep a copy of the online license verification in lieu of a wall certificate. Additionally, the amended rule requires a supervisor to keep a written record acknowledging the supervisee is self-employed, if applicable. And the amended rule clarifies the liability assumed for a supervisee by a supervisor; both are responsible for the professional counseling activities of an LPC-Associate but an LPC-S may be subject to disciplinary action for violations that relate only to the professional practice of counseling committed by the LPC-Associate which the LPC-S knew about or due to the oversight nature of the supervisory relationship should have known about.

Texas Behavioral Health Executive Council

Adopted Rules Re:

New 22 TAC §881.33, requiring the development of a program where agency employees can voluntarily transfer sick or vacation leave earned by the employee to a family leave pool, and eligible employees can apply for leave under this pool.

CHAPTER 881. GENERAL PROVISIONS
SUBCHAPTER C. PERSONNEL
22 TAC §881.33

OVERVIEW

The Texas Behavioral Health Executive Council adopts new §881.33, relating to Family Leave Pool. Section 881.33 is adopted without changes to the proposed text as published in the December 10, 2021, issue of the Texas Register (46 Tex Reg 8311) and will not be republished.

BACKGROUND AND JUSTIFICATION

The new rule is necessary to implement H.B. 2063, 87th Leg., R.S. (2021), which codified new Subchapter A-1 of Chapter 661 of the Government Code. These new statutes require state agencies to adopt rules to develop a program where agency employees can voluntarily transfer sick or vacation leave earned by the employee to a family leave pool, and eligible employees can apply for leave under this pool.

Amending 22 TAC §882.21 to reflect the change in process whereby requests to reactivate a license must now be submitted through the online licensing system.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER B. LICENSE
22 TAC §882.21

OVERVIEW

The Texas Behavioral Health Executive Council adopts amendments to §882.21, relating to License Statuses. Section 882.21 is adopted without changes to the proposed text as published in the December 10, 2021, issue of the Texas Register (46 Tex Reg 8313) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amended rule is necessary to reflect the change in process whereby requests to reactivate a license must now be submitted through the online licensing system.

New 22 TAC §882.37, prohibiting licensees from requiring an individual to provide documentation certifying the individual’s COVID-19 vaccination or post-transmission recovery.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER C. DUTIES AND RESPONSIBILITIES
22 TAC §882.37

OVERVIEW

The Texas Behavioral Health Executive Council adopts new §882.37, relating to COVID-19 Vaccine Passports Prohibited. Section 882.37 is adopted without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 Tex Reg 6500) and will not be republished.

BACKGROUND AND JUSTIFICATION

The new rule is needed to implement S.B. 968, 87th Leg., R.S. (2021), which codifies new Section 161.0085 of the Health and Safety Code. This new statute requires state agencies to ensure compliance with this statute and may require compliance as a condition for licensure.

Amending 22 TAC §882.60 to update licensing provisions related to military service members, veterans, and military spouses.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER F. LICENSING PROVISIONS RELATED TO MILITARY SERVICE MEMBERS, VETERANS, AND MILITARY SPOUSES
22 TAC §882.60

OVERVIEW

The Texas Behavioral Health Executive Council adopts amendments to §882.60, relating to Special Provisions Applying to Military Service Members, Veterans and Spouses. Section 882.60 is adopted without changes to the proposed text as published in the December 10, 2021, issue of the Texas Register (46 Tex Reg 8314) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amended rule is necessary to reflect recent changes to Section 55.004 of the Occupations Code following passage of H.B. 139, 87th Leg., R.S. (2021).

Amending 22 TAC §882.61 to correct a typographical error in licensing provisions related to military service members, veterans, and military spouses.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER F. LICENSING PROVISIONS RELATED TO MILITARY SERVICE MEMBERS, VETERANS, AND MILITARY SPOUSES
22 TAC §882.61

OVERVIEW

The Texas Behavioral Health Executive Council adopts amendments to §882.61, relating to Special Licensing Provisions for Military Spouses. Section 882.61 is adopted without changes to the proposed text as published in the December 10, 2021, issue of the Texas Register (46 Tex Reg 8316) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amended rule is necessary to correct a typographical error and reflect recent changes to Section 55.004 of the Occupations Code following passage of H.B. 139, 87th Leg., R.S. (2021).

Amending 22 TAC §882.70 to allow an emergency temporary license to remain active until the disaster declaration has been terminated or the suspension of statutes or rules that allowed for the issuance of the emergency temporary license have been lifted.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER G. EMERGENCY TEMPORARY LICENSE
22 TAC §882.70

OVERVIEW

The Texas Behavioral Health Executive Council adopts amendments to §882.70, relating to emergency temporary license. Section 882.70 is adopted without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 Tex Reg 6501) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amended rule removes the requirement that individuals that hold an emergency temporary license issued by this agency must renew such a license within 30 days or it will expire. Under the amended rule, once an emergency temporary license has been issued it remains active until the disaster declaration has been terminated or the suspension of statutes or rules that allowed for the issuance of the emergency temporary license have been lifted.

New 22 TAC §884.4, addressing the procedural requirements for the filing and adjudication of complaints relating to court-ordered therapy or parenting facilitator services.

CHAPTER 884. COMPLAINTS AND ENFORCEMENT
SUBCHAPTER A. FILING A COMPLAINT
22 TAC §884.4

OVERVIEW

The Texas Behavioral Health Executive Council adopts new §884.4, relating to Special Requirements for Complaints Alleging Violations Related to Court Ordered Therapy or Parenting Facilitator Services. Section 884.4 is adopted without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 Tex Reg 6502) and will not be republished.

BACKGROUND AND JUSTIFICATION

The new rule is intended to address the procedural requirements for the filing and adjudication of complaints relating to court-ordered therapy or parenting facilitator services. Under this rule, a complainant must wait to bring a complaint to the agency until the licensee’s appointment has expired or been terminated. This ensures that complaints are not used as a litigation tactic and that the agency does not interfere or conflict with a court’s inherent power to regulate its own proceedings. Additionally, the new rule expressly preserves a complainant’s right to file a complaint once a licensee is no longer under appointment even if the general limitations period has expired.

Amending 22 TAC §885.1 to clarify and correct the Texas.gov fee required for some of the license applications, and criminal history evaluations.

CHAPTER 885. FEES
22 TAC §885.1

OVERVIEW

The Texas Behavioral Health Executive Council adopts amendments to §885.1, relating to Fees. Section 885.1 is adopted without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 Tex Reg 6504) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amended rule is intended to clarify and correct the Texas.gov fee required for some of the license applications, and criminal history evaluations. This fee is required by law, is paid to a different state agency, and is only expected to increase by about $3.00 to $10.00 per application. The fee is necessary because these applications are transitioning from traditional paper applications to an online process which is expected to increase agency efficiencies and make the application process easier for applicants. Additionally, this amended rule combines the fees for an initial LMFT Associate application with the fee for the initial licensure, but the result is the same fee.

Texas Board of Occupational Therapy Examiners

Adopted Rules Re:

Amending 40 TAC §§367.1 – 367.3 to revise current continuing education requirements and add activities eligible for continuing education credit.

CHAPTER 367. CONTINUING EDUCATION
40 TAC §§367.1 – 367.3

OVERVIEW

The Texas Board of Occupational Therapy Examiners adopts amendments to 40 Texas Administrative Code §367.1, Continuing Education; §367.2, Categories of Education; and §367.3, Continuing Education Audit. The amendments are adopted to revise current continuing education requirements and add activities eligible for continuing education credit. Section 367.1, Continuing Education, and §367.2, Categories of Education, were adopted without changes to the proposed text as published in the December 3, 2021, issue of the Texas Register (46 Tex Reg 8228) and will not be republished. Section 367.3, Continuing Education Audit, was adopted with changes to the proposed text as published in the December 3, 2021, issue of the Texas Register (46 Tex Reg 8228) and will be republished.

SECTION-BY-SECTION SUMMARY

The change upon adoption to §367.3, Continuing Education Audit, will replace in §367.3(e) the phrase “the name and signature of the authorized signer or the official seal, letterhead, or logo of the authorized signer if an area designated for a signature is not included” with “the name of the authorized signer and either the signature of the authorized signer or the official seal, letterhead, or logo of the authorized signer if an area designated for a signature is not included.” The change will clarify that if an area designated for a signature is not included on official documentation of a CE activity, the official seal, letterhead, or logo of the authorized signer may be included.

The amendments to §367.2, Categories of Education, revise current continuing education requirements and include cleanups and clarifications. The revisions include the substitution of the phrase “Creation of a new” with “Development of a” in an item concerning the development of a formal academic course or courses from an occupational therapy program. Such a change will allow licensees to count the development of a course or courses, which includes the creation of a new course or courses, for continuing education credit. The amendments add that the required documentation for certain categories of continuing education, such as the development of a formal academic course from an occupational therapy program or the development of publications, includes an attestation by the licensee of the dates and duration of the corresponding activities completed. This documentation will ensure that licensees attest to the activities they have completed for credit for such categories. The revisions also include the replacement of an item concerning the development of practice-related or instructional materials using alternative media by an item concerning the development of practice-related or instructional software.

The changes to the section also include, with regard to the maximum credit available for certain activities and/or categories, substituting a phrase such as “maximum” with “up to a maximum of”; such amendments will not change the amount of credit available for the activities and/or categories, but will, instead, make related language more uniform throughout the chapter.

The amendments to §367.2 add additional categories of continuing education and activities eligible for continuing education. For example, the amendments add that licensees may count the development of a professional or community/service presentation for continuing education credit.

The amendments include changes that would allow licensees to count an independent study for continuing education. Due to the change, the amendments also include the removal of the phrase “Reading journals” from a provision in §367.1, Continuing Education, concerning unacceptable activities not eligible for continuing education. Continuing education activities completed by the licensee for license renewal shall be acceptable if falling under one or more of the categories of continuing education activities included in §367.2, Categories of Education, and meeting further requirements of Chapter 367, Continuing Education. The phrase “Reading journals” has been removed, however, to reduce possible confusion concerning the new independent study category and the activities that may be counted for such, which may include the reading of journals, provided such meets other requirements of that category.

Amendments to §367.3, Continuing Education Audit, revise continuing education documentation to clarify and expand the items that may be included for such. A change to the section, with regard to items that may serve as continuing education documentation, includes striking “an official transcript” and replacing such with “transcripts.” Additional changes include the information that must be on continuing education documentation. The section currently includes that documentation must include the signature of the authorized signer. The amendments add that if an area designated for the signature of the authorized signer is not included, the official seal, letterhead, or logo of the authorized signer may be included, instead.

New 40 TAC §370.4, adding language regarding the delegation of Board authority to certain staff to administratively suspend or refuse to renew a license.

CHAPTER 370. LICENSE RENEWAL
40 TAC §370.4

OVERVIEW

The Texas Board of Occupational Therapy Examiners adopts new rule 40 Texas Administrative Code §370.4, concerning Administrative Suspension and Refusal to Renew a License. The new rule is adopted to add to the Board rules language regarding the delegation of Board authority to certain staff to administratively suspend or refuse to renew a license pursuant to Texas Occupations Code §454.255. The rule is adopted without changes to the proposed text as published in the December 3, 2021, issue of the Texas Register (46 Tex Reg 8232). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The Occupational Therapy Practice Act, Texas Occupations Code §454.255(a), Criminal History Record information for License Renewal, provides that “An applicant renewing a license issued under this chapter shall submit a complete and legible set of fingerprints for purposes of performing a criminal history record information check of the applicant as provided by Section 454.217.” Section 454.255(b) further specifies that “The board may administratively suspend or refuse to renew the license of a person who does not comply with the requirement of Subsection (a).”

Rule §370.4 will specify that the Executive Director, the Executive Director’s designee, or the Director of Enforcement may administratively suspend or refuse to renew the license of a person who does not comply with the requirements of the Occupational Therapy Practice Act §454.217 (relating to Criminal History Record Information for License Issuance) and §454.255 (relating to Criminal History Record Information Requirement for License Renewal).

Department of Aging and Disability Services

In Addition Re:

Correcting an error related to the adopted amendments to 40 TAC §45.211, which concerns the enrollment process for community living assistance and support services and community first choice services.

The Department of Aging and Disability Services adopted amendments to 40 TAC §45.211 in the February 4, 2022, issue of the Texas Register (47 Tex Reg 537). Due to an error by the Texas Register, the title number for the amendment was listed incorrectly on page 47 Tex Reg 540. Following the division name, the rule number should have been published as 40 TAC §45.211.

Department of State Health Services

In Addition Re:

Licensing Actions for Radioactive Materials

OVERVIEW

During the first half of January 2022, the Department of State Health Services (Department) has taken actions regarding Licenses for the possession and use of radioactive materials as listed in the tables (in alphabetical order by location). The subheading “Location” indicates the city in which the radioactive material may be possessed and/or used. The location listing “Throughout TX [Texas]” indicates that the radioactive material may be used on a temporary basis at locations throughout the state.

A graphic providing the detailed licensing actions can be found in this week’s edition of the Texas Register at 47 Tex Reg 808.

BACKGROUND AND JUSTIFICATION

In issuing new licenses and amending and renewing existing licenses, the Department’s Business Filing and Verification Section has determined that the applicant has complied with the licensing requirements in Title 25 Texas Administrative Code (TAC), Chapter 289, for the noted action. In granting termination of licenses, the Department has determined that the licensee has complied with the applicable decommissioning requirements of 25 TAC, Chapter 289. In granting exemptions to the licensing requirements of Chapter 289, the Department has determined that the exemption is not prohibited by law and will not result in a significant risk to public health and safety and the environment.

A person affected by the actions published in this notice may request a hearing within 30 days of the publication date. A “person affected” is defined as a person who demonstrates that the person has suffered or will suffer actual injury or economic damage and, if the person is not a local government, is (a) a resident of a county, or a county adjacent to the county, in which radioactive material is or will be located, or (b) doing business or has a legal interest in land in the county or adjacent county. 25 TAC §289.205(b)(15); Health and Safety Code §401.003(15). Requests must be made in writing and should contain the words “hearing request,” the name and address of the person affected by the agency action, the name and license number of the entity that is the subject of the hearing request, a brief statement of how the person is affected by the action what the requestor seeks as the outcome of the hearing, and the name and address of the attorney if the requestor is represented by an attorney. Send hearing requests by mail to: Hearing Request, Radiation Material Licensing, MC 2835, PO Box 149347, Austin, Texas 78714-9347, or by fax to: 512-834-6690, or by e-mail to: RAMlicensing@dshs.texas.gov.