19 Feb 2021

Texas Register February 19, 2021 Volume: 46 Number: 8

by | posted in: Governor, Texas Department of Insurance, Texas Department of State Health Services, Texas Department on Aging and Disability Services, Texas Health and Human Services Commission, Texas State Board of Examiners of Psychologists |

Texas Register Table of Contents

Governor

 

Appointments

Governor appoints one new member and reappoints two members to the Texas State Board of Examiners of Marriage and Family Therapists

Appointments for February 3, 2021Appointed to the Texas State Board of Examiners of Marriage and Family Therapists, for terms to expire February 1, 2027:Jodie L. Elder, Ph.D. of Dallas, Texas (replacing Kenneth V. “Ken” Bateman, Jr., Ed.D. of Garland, whose term expired);Anthony C. Scoma of Austin, Texas (Pastor Scoma is being reappointed);Evelyn Husband Thompson of Houston, Texas (Ms. Thompson is being reappointed).

Governor

Appointments

Governor reappoints Cecile Erwin Young as the Executive Commissioner of Health and Human Services

Appointments for February 8, 2021Appointed as Executive Commissioner of Health and Human Services, for a term to expire February 1, 2023, Cecile Erwin Young of Austin, Texas (Commissioner Young is being reappointed).

Governor

Notices

Proclamation 41-3805: Renewing the disaster classification for all Texas counties in response to COVID-19

OVERVIEWIn accordance with the authority vested by Section 418.014 of the Texas Government Code, Governor hereby renews the disaster proclamation for all counties in Texas.Pursuant to Section 418.017, Governor authorizes the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.Pursuant to Section 418.016, any regulatory statute prescribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforcement of any state statute or administrative rule regarding contracting or procurement would impede any state agency’s emergency response that is necessary to cope with this declared disaster, Governor hereby suspends such statutes and rules for the duration of this declared disaster for that limited purpose.BACKGROUND AND JUSTIFICATION The Governor’s rationale for issuing Proclamation 41-3805 is included in this week’s edition of the Texas Register (46 Tex Reg 1119). 

Texas Health and Human Services Commission

Emergency Rule

New 26 TAC §500.4, allowing licensed hospitals to participate in the CMS “hospitals at home” program during the COVID-19 pandemic

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSINGSUBCHAPTER A. HOSPITALS26 TAC §500.4OVERVIEWThe 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 §500.4, concerning an emergency rule in response to COVID-19 in order to permit a licensed hospital to participate in the Centers for Medicare and Medicaid Services (CMS) Acute Hospital Care at Home Program to expand hospital capacity in response to the COVID-19 pandemic. HHSC is adopting this emergency rule to temporarily permit a currently licensed hospital to participate in the CMS hospitals at home program to expand hospital capacity in response to the COVID-19 pandemic.BACKGROUND AND JUSTIFICATION As authorized by Texas Government Code §2001.034, the Commission 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.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 Participating in the Centers for Medicare and Medicaid Services Acute Hospital Care at Home Program During the COVID-19 Pandemic.

Texas Health and Human Services Commission

Emergency Rule

New 26 TAC §553.2001, imposing requirements on assisted living facilities for the containment of COVID-19

CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIESSUBCHAPTER K. COVID-19 RESPONSE26 TAC §553.2001OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Texas Administrative Code, Chapter 553, Licensing Standards for Assisted Living Facilities, new §553.2001, concerning an emergency rule in response to COVID-19 and requiring assisted living facility actions to mitigate and contain COVID-19.HHSC is adopting this emergency rule to require assisted living facility actions to mitigate and contain COVID-19. The purpose of the new rule is to describe these requirements. BACKGROUND AND JUSTIFICATION As authorized by Texas Government Code §2001.034, HHSC may adopt an emergency rule without prior notice or hearing if it finds 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.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 Assisted Living Facility COVID-19 Response.

Texas Health and Human Services Commission

Emergency Rule

New 26 TAC §554.2802, allowing certain nursing facilities to request a temporary Medicaid capacity increase in response to COVID-19

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATIONSUBCHAPTER CC. COVID-19 EMERGENCY RULE26 TAC §554.2802OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 554, Nursing Facility Requirements for Licensure and Medicaid Certification, new §554.2802. This emergency rule is adopted in response to COVID-19 and requires nursing facilities to take certain actions to reduce the risk of spreading COVID-19. The emergency rule also permits nursing facilities to request temporary increases in capacity and Medicaid bed allocations to aid in preventing the transmission of COVID-19 or caring for residents with COVID-19. HHSC is adopting this emergency rule to mitigate and contain COVID-19 and to permit a nursing facility to request a temporary increase in capacity or Medicaid bed allocation as part of the facility’s response to COVID-19. The purpose of the new rule is to describe the requirements nursing facility providers must immediately put into place to mitigate and contain COVID-19 and the procedures and criteria for requesting a temporary capacity increase or a temporary Medicaid bed allocation increase.BACKGROUND AND JUSTIFICATION As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing if it finds 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.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. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Emergency Rule for Nursing Facility Response to COVID-19.

Texas Health and Human Services Commission

Proposed Rules

Repealing current Chapter 391 and replacing with new Chapter 391 to clarify rules governing HHSC’s purchase of goods and services

CHAPTER 391. PURCHASE OF GOODS AND SERVICES BY THE TEXAS HEALTH AND HUMAN SERVICES COMMISSIONOVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §§391.101, 391.103, 391.201, 391.203, 391.205, 391.207, 391.209, 391.211, 391.213, 391.215, 391.301, 391.401, 391.403, 391.405, 391.407, 391.409, 391.501, 391.503, 391.505, 391.601, 391.603, 391.605, 391.621, 391.623, 391.625, 391.627, 391.629, 391.631, 391.633, 391.635, 391.637, 391.651, 391.653, 391.655, 391.657, 391.659, 391.661, 391.663, 391.665, 391.667, 391.669, and 391.711; and new §§391.101, 391.103, 391.105, 391.107, 391.201, 391.203, 391.205, 391.207, 391.209, 391.211, 391.213, 391.215, 391.217, 391.219, 391.241, 391.243, 391.301, 391.303, 391.305, 391.307, 391.309, 391.401, 391.403, 391.405, 391.501, 391.503, 391.601, 391.603, 391.605, 391.701, 391.703, 391.705, 391.721, 391.723, 391.725, 391.727, 391.729, 391.731, 391.733, 391.735, 391.737, 391.751, 391.753, 391.755, 391.757, 391.759, 391.761, 391.763, 391.765, 391.767 and 391.769, concerning Purchase of Goods and Services by the Texas Health and Human Services Commission.SECTION-BY-SECTION SUMMARY A detailed summary of the provisions within each new subchapter is included in this week’s edition of the Texas Register (46 Tex Reg 1132). BACKGROUND AND JUSTIFICATION The proposed repeal and new rules are the result of a comprehensive review of Chapter 391 to ensure HHSC’s purchasing rules are current and comply with State of Texas procurement and contracting laws and rules regarding state agency procurement and contracting. After review, it was determined that significant revisions were needed throughout the chapter to update the rules and to effectively reorganize them for better clarity and flow. This proposal deletes rules that are obsolete and proposes new rules that reorganize and update the sections to accurately define and describe the solicitation and contracting methods used for purchases delegated to HHSC in Texas Government Code §2155.144. The proposed new rules also include non-substantive edits, revisions, and updates to citations throughout the chapter.

Texas State Board of Examiners of Psychologists

Proposed Rules

Amending 22 TAC §463.10 to clarify the “substantial equivalence” requirement for psychologists licensed before 1979

CHAPTER 463. APPLICATIONS AND EXAMINATIONSSUBCHAPTER B. LICENSING REQUIREMENTS22 TAC §463.10OVERVIEWThe Texas Behavioral Health Executive Council proposes amended §463.10, relating to Licensed Psychologists.BACKGROUND AND JUSTIFICATION Currently §463.10(b)(3)(B) requires applicants with a doctoral degree conferred prior to January 1, 1979, that intend to apply for licensure under the substantial equivalence clause to provide information regarding the instructors in the courses submitted as substantially equivalent. Substantial equivalence of the degree’s courses is evaluated but the instructors for the courses are not. Therefore, this part of the rule is unnecessary and is proposed to be repealed.

Texas State Board of Examiners of Psychologists

Proposed Rules

Amending 22 TAC §463.35 to delete redundant language concerning the professional development requirement

CHAPTER 463. APPLICATIONS AND EXAMINATIONSSUBCHAPTER F. PROFESSIONAL DEVELOPMENT22 TAC §463.35OVERVIEWThe Texas Behavioral Health Executive Council proposes amended §463.35, relating to Professional Development.BACKGROUND AND JUSTIFICATION Currently §463.35(a) requires a minimum of 40 hours of professional development be completed during each license renewal period. Part of §463.35(e) requires professional development activities not to be used for credit in more than one renewal period. This part of §463.35(e) is redundant and unnecessary and is proposed to be repealed.

Texas State Board of Examiners of Psychologists

Proposed Rules

Repealing 22 TAC §463.40 to allow for the adoption of a new rule governing the licensure for persons with a criminal history

CHAPTER 463. APPLICATIONS AND EXAMINATIONSSUBCHAPTER G. CRIMINAL HISTORY AND LICENSE ELIGIBILITY22 TAC §463.40OVERVIEWThe Texas Behavioral Health Executive Council proposes the repeal of §463.40, relating to Ineligibility Due to Criminal History. The proposed repeal corresponds with the proposal of a new rule elsewhere in this edition of the Texas Register.BACKGROUND AND JUSTIFICATION The proposed repeal of this rule is needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council’s duties and implement Chapter 507. This proposed repeal is intended to standardize the Executive Council and all Board rules regarding licensing a person with criminal convictions. The Executive Council has proposed a new rule, in this edition of the Texas Register, which concern the same subject matter, details, and requirements found in this rule, therefore the repeal of this rule is necessary to implement H.B. 1501.

Texas State Board of Examiners of Psychologists

Proposed Rules

New 22 TAC §463.40, standardizing rules for licensure of persons with a criminal history

CHAPTER 463. APPLICATIONS AND EXAMINATIONSSUBCHAPTER G. CRIMINAL HISTORY AND LICENSE ELIGIBILITY22 TAC §463.40OVERVIEWThe Texas Behavioral Health Executive Council proposes new §463.40, relating to Licensing of Persons with Criminal Convictions.BACKGROUND AND JUSTIFICATION The proposed rule is needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council’s duties and implement Chapter 507. This proposed new rule is intended to standardize the Executive Council and all Board rules regarding licensing a person with criminal convictions.

Texas State Board of Examiners of Psychologists

Proposed Rules

Amending 22 TAC §465.1 to delete a term that is irrelevant to the rules of practice

CHAPTER 465. RULES OF PRACTICE22 TAC §465.1OVERVIEWThe Texas Behavioral Health Executive Council proposes amended §465.1, relating to Definitions.BACKGROUND AND JUSTIFICATION Currently §465.1(12) defines the term “professional standards”, but this definition is not utilized in 22 Texas Administrative Code Chapter 465 and the definition provided by the rule does not provide much clarification or guidance. Therefore, this defined term is unnecessary and is proposed to be repealed.

Texas State Board of Examiners of Psychologists

Proposed Rules

Amending 22 TAC §465.2 to clarify rules for providing supervision using asynchronous telecommunication

CHAPTER 465. RULES OF PRACTICE22 TAC §465.2OVERVIEWThe Texas Behavioral Health Executive Council proposes amended §465.2, relating to Supervision.BACKGROUND AND JUSTIFICATION Currently the rule allows licensees to provide supervision by remote or electronic means if it is synchronous, e.g. live audiovisual means. The proposed amendment will still allow for all supervision to be conducted by synchronous remote or electronic means but up to half of the required supervision may be conducted by asynchronous means, e.g. email.

Texas State Board of Examiners of Psychologists

Proposed Rules

Amending 22 TAC §465.13 to clarify rules governing personal problems, conflicts and dual relationships

CHAPTER 465. RULES OF PRACTICE22 TAC §465.13OVERVIEWThe Texas Behavioral Health Executive Council proposes amended §465.13, relating to Personal Problems, Conflicts, and Dual Relationship.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. A licensee is also prohibited from withdrawing from a professional relationship for the purpose of entering into a personal, financial, or other relationship with a patient or client. Additionally, licensees must withdraw from a professional relationship if it conflicts with their ability to comply with all applicable statutes and rules. The intent of the proposed amendment is to clarify these requirements that are currently in the rule.

Texas Health and Human Services Commission

Proposed Rules

Amending 26 TAC §213.101 and §213.203 to provide Area Agencies on Aging greater flexibility in providing home-delivered meals

CHAPTER 213. AREA AGENCIES ON AGINGSUBCHAPTER C. IMPLEMENTATION OF THE OLDER AMERICANS ACTDIVISION 1. DEFINITIONS (26 TAC §213.101)DIVISION 3. OLDER AMERICANS ACT SERVICES (26 TAC §213.101)OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §213.101, concerning Definitions, and §213.203, concerning Nutrition Services.SECTION-BY-SECTION SUMMARY A detailed summary of changes made by the amendments is included in this week’s edition of the Texas Register (46 Tex Reg 1186).BACKGROUND AND JUSTIFICATION The purpose of the proposal is to ensure the rules are consistent with requirements of the Older Americans Act, 42 U.S.C. §§3001-3058ff. The current rules are more restrictive than federal law. The changes will allow area agencies on aging (AAA) more flexibility when providing home delivered meal services to eligible persons. The flexibilities will reduce the need for AAAs to submit several waiver requests to HHSC for approval, thus streamlining the service delivery process. Agency specific policy is removed from the rule and included by reference. In addition, the rule is reorganized for clarity, readability, and consistency.

Texas Department of Insurance

Proposed Rules

Repealing 28 TAC §§21.2401-21.2407 to allow for the adoption of new rules requiring coverage parity for mental health conditions and substance use disorders

CHAPTER 21. TRADE PRACTICESSUBCHAPTER P. MENTAL HEALTH PARITY28 TAC §§21.2401 – 21.2407OVERVIEWThe Texas Department of Insurance (TDI) proposes to repeal 28 TAC Chapter 21, Subchapter P (relating to Mental Health Parity), 28 TAC §§21.2401 – 21.2407. The repeal implements House Bill 10, 85th Legislature, 2017. BACKGROUND AND JUSTIFICATION This rule is intended to implement the Legislature’s directives in HB 10, 85th Legislature, 2017, to health benefit plan issuers (issuers), and to the Commissioner. Issuers are to provide benefits and coverage for mental health conditions and substance use disorders under the same terms and conditions applicable to the plan’s medical and surgical benefits and coverage. An issuer may not impose quantitative or nonquantitative treatment limitations on benefits for a mental health condition or substance use disorder that are generally more restrictive than the limitations imposed on coverage of benefits for medical or surgical expenses. The Commissioner is to enforce compliance with the Legislature’s directive to issuers by evaluating the benefits and coverage offered by an issuer’s health benefit plan for quantitative and nonquantitative treatment limitations in several categories:(1) in-network and out-of-network inpatient care(2) in-network and out-of-network outpatient care(3) emergency care, and(4) prescription drugs.This rule is designed to provide issuers guidance on compliance with the Legislature’s directive, and to collect information and require issuer analysis of data that will allow the Commissioner to enforce compliance.

Texas Department of Insurance

Proposed Rules

New 28 TAC §§21.2401-21.2414, establishing general parity requirements for mental health services and substance use disorders

CHAPTER 21. TRADE PRACTICESSUBCHAPTER P. MENTAL HEALTH AND SUBSTANCE USE DISORDER PARITYDIVISION 1. GENERAL PROVISIONS AND PARITY REQUIREMENTS28 TAC §§21.2401 – 21.2414OVERVIEWThe Texas Department of Insurance (TDI) proposes to adopt new 28 TAC Chapter 21, Subchapter P (relating to Mental Health and Substance Use Disorder Parity), 28 TAC §§21.2401 – 21.2414, concerning general provisions and parity requirements for mental health services and substance use disorders. Sections 21.2401 – 21.2406 of Division 1 contain general provisions that apply to the entire subchapter. The remaining sections of Division 1, §§21.2407 – 21.2414, restate (with a few noted exceptions) the federal medical/surgical and MH/SUD parity requirements established in 45 CFR §146.136(b) – (h) (concerning Parity in Mental Health and Substance Use Disorder Benefits) (federal parity rule).BACKGROUND AND JUSTIFICATION This rule is intended to implement the Legislature’s directives in HB 10, 85th Legislature, 2017, to health benefit plan issuers (issuers), and to the Commissioner. Issuers are to provide benefits and coverage for mental health conditions and substance use disorders under the same terms and conditions applicable to the plan’s medical and surgical benefits and coverage. An issuer may not impose quantitative or nonquantitative treatment limitations on benefits for a mental health condition or substance use disorder that are generally more restrictive than the limitations imposed on coverage of benefits for medical or surgical expenses. The Commissioner is to enforce compliance with the Legislature’s directive to issuers by evaluating the benefits and coverage offered by an issuer’s health benefit plan for quantitative and nonquantitative treatment limitations in several categories:(1) in-network and out-of-network inpatient care(2) in-network and out-of-network outpatient care(3) emergency care, and(4) prescription drugs.This rule is designed to provide issuers guidance on compliance with the Legislature’s directive, and to collect information and require issuer analysis of data that will allow the Commissioner to enforce compliance.

Texas Department of Insurance

Proposed Rules

New 28 TAC §§21.2421-21.2427, requiring parity with regard to notices and data collection for mental health conditions and substance use disorders

CHAPTER 21. TRADE PRACTICESSUBCHAPTER P. MENTAL HEALTH AND SUBSTANCE USE DISORDER PARITYDIVISION 2. PLAN INFORMATION AND DATA COLLECTION28 TAC §§21.2421 – 21.2427OVERVIEWThe Texas Department of Insurance (TDI) proposes to adopt new 28 TAC Chapter 21, Subchapter P (relating to Mental Health and Substance Use Disorder Parity), 28 TAC §§21.2421 – 21.2427, concerning plan information and data collection. Division 2, consisting of §§21.2421 – 21.2427, addresses requirements for issuers to provide data on plans’ claims, utilization reviews, and reimbursement rates.BACKGROUND AND JUSTIFICATION This rule is intended to implement the Legislature’s directives in HB 10, 85th Legislature, 2017, to health benefit plan issuers (issuers), and to the Commissioner. Issuers are to provide benefits and coverage for mental health conditions and substance use disorders under the same terms and conditions applicable to the plan’s medical and surgical benefits and coverage. An issuer may not impose quantitative or nonquantitative treatment limitations on benefits for a mental health condition or substance use disorder that are generally more restrictive than the limitations imposed on coverage of benefits for medical or surgical expenses. The Commissioner is to enforce compliance with the Legislature’s directive to issuers by evaluating the benefits and coverage offered by an issuer’s health benefit plan for quantitative and nonquantitative treatment limitations in several categories:(1) in-network and out-of-network inpatient care(2) in-network and out-of-network outpatient care(3) emergency care, and(4) prescription drugs.This rule is designed to provide issuers guidance on compliance with the Legislature’s directive, and to collect information and require issuer analysis of data that will allow the Commissioner to enforce compliance.

Texas Department of Insurance

Proposed Rules

New 28 TAC §§21.2431 – 21.2441, requiring issuers to analyze compliance with parity rules for mental health conditions and substance use disorders

CHAPTER 21. TRADE PRACTICESSUBCHAPTER P. MENTAL HEALTH AND SUBSTANCE USE DISORDER PARITYDIVISION 3. COMPLIANCE ANALYSIS FOR MH/SUD PARITY28 TAC §§21.2431 – 21.2441OVERVIEWThe Texas Department of Insurance (TDI) proposes to adopt new 28 TAC Chapter 21, Subchapter P (relating to Mental Health and Substance Use Disorder Parity), 28 TAC §§21.2431 – 21.2441, concerning compliance analysis for MH/SUD parity. Division 3, consisting of §§21.2431 – 21.2441, contains requirements for issuers to analyze parity compliance and maintain documentation of their analyses of plans’ QTLs and NQTLs.BACKGROUND AND JUSTIFICATION This rule is intended to implement the Legislature’s directives in HB 10, 85th Legislature, 2017, to health benefit plan issuers (issuers), and to the Commissioner. Issuers are to provide benefits and coverage for mental health conditions and substance use disorders under the same terms and conditions applicable to the plan’s medical and surgical benefits and coverage. An issuer may not impose quantitative or nonquantitative treatment limitations on benefits for a mental health condition or substance use disorder that are generally more restrictive than the limitations imposed on coverage of benefits for medical or surgical expenses. The Commissioner is to enforce compliance with the Legislature’s directive to issuers by evaluating the benefits and coverage offered by an issuer’s health benefit plan for quantitative and nonquantitative treatment limitations in several categories:(1) in-network and out-of-network inpatient care(2) in-network and out-of-network outpatient care(3) emergency care, and(4) prescription drugs.This rule is designed to provide issuers guidance on compliance with the Legislature’s directive, and to collect information and require issuer analysis of data that will allow the Commissioner to enforce compliance.

Texas Department of Insurance

Proposed Rules

New 28 TAC §§21.2451-21.2453, updating parity rules for coverage of Autism Spectrum Disorder

CHAPTER 21. TRADE PRACTICESSUBCHAPTER P. MENTAL HEALTH AND SUBSTANCE USE DISORDER PARITYDIVISION 4. AUTISM SPECTRUM DISORDER28 TAC §§21.2451 – 21.2453OVERVIEWThe Texas Department of Insurance (TDI) proposes to adopt new 28 TAC Chapter 21, Subchapter P (relating to Mental Health and Substance Use Disorder Parity), 28 TAC §§21.2451 – 21.2453, concerning parity rules for Autism Spectrum Disorder . Division 4, consisting of §§21.2451 – 21.2453, adopts and updated autism spectrum disorder rules based on those from repealed Subchapter JJ. Differences between the repealed and new sections reflect that this coverage is subject to Insurance Code Chapter 1355, Subchapter F, concerning Coverage for Mental Health Conditions and Substance Use Disorders.BACKGROUND AND JUSTIFICATION This rule is intended to implement the Legislature’s directives in HB 10, 85th Legislature, 2017, to health benefit plan issuers (issuers), and to the Commissioner. Issuers are to provide benefits and coverage for mental health conditions and substance use disorders under the same terms and conditions applicable to the plan’s medical and surgical benefits and coverage. An issuer may not impose quantitative or nonquantitative treatment limitations on benefits for a mental health condition or substance use disorder that are generally more restrictive than the limitations imposed on coverage of benefits for medical or surgical expenses. The Commissioner is to enforce compliance with the Legislature’s directive to issuers by evaluating the benefits and coverage offered by an issuer’s health benefit plan for quantitative and nonquantitative treatment limitations in several categories:(1) in-network and out-of-network inpatient care(2) in-network and out-of-network outpatient care(3) emergency care, and(4) prescription drugs.This rule is designed to provide issuers guidance on compliance with the Legislature’s directive, and to collect information and require issuer analysis of data that will allow the Commissioner to enforce compliance.

Texas Department of Insurance

Proposed Rules

Repealing 28 TAC §§21.4401-21.4404 to allow for the adoption of new rules requiring coverage parity for Autism Spectrum Disorder

CHAPTER 21. TRADE PRACTICESSUBCHAPTER JJ. AUTISM SPECTRUM DISORDER COVERAGEDIVISION 1. GENERAL PROVISIONS28 TAC §§21.4401 – 21.4404OVERVIEWThe Texas Department of Insurance (TDI) proposes to repeal 28 TAC Chapter 21, Subchapter JJ (relating to Autism Spectrum Disorder Coverage). BACKGROUND AND JUSTIFICATION This rule is intended to implement the Legislature’s directives in HB 10, 85th Legislature, 2017, to health benefit plan issuers (issuers), and to the Commissioner. Issuers are to provide benefits and coverage for mental health conditions and substance use disorders under the same terms and conditions applicable to the plan’s medical and surgical benefits and coverage. An issuer may not impose quantitative or nonquantitative treatment limitations on benefits for a mental health condition or substance use disorder that are generally more restrictive than the limitations imposed on coverage of benefits for medical or surgical expenses. The Commissioner is to enforce compliance with the Legislature’s directive to issuers by evaluating the benefits and coverage offered by an issuer’s health benefit plan for quantitative and nonquantitative treatment limitations in several categories:(1) in-network and out-of-network inpatient care(2) in-network and out-of-network outpatient care(3) emergency care, and(4) prescription drugs.This rule is designed to provide issuers guidance on compliance with the Legislature’s directive, and to collect information and require issuer analysis of data that will allow the Commissioner to enforce compliance.

Texas Health and Human Services Commission

Adopted Rules

Amending 1 TAC §355.8261 to update reimbursement rates for the provision of telehealth services by Federally Qualified Health Centers

CHAPTER 355. REIMBURSEMENT RATESSUBCHAPTER J. PURCHASED HEALTH SERVICESDIVISION 14. FEDERALLY QUALIFIED HEALTH CENTER SERVICES1 TAC §355.8261OVERVIEWThe Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.8261, concerning Federally Qualified Health Center Services Reimbursement. Section 355.8261 is adopted with changes to the proposed text as published in the November 13, 2020, issue of the Texas Register (45 TexReg 8077). This rule will be republished.BACKGROUND AND JUSTIFICATION The amendment to §355.8261 complies with Senate Bill 670, 86th Legislature, Regular Session, 2019, which requires HHSC to ensure that a federally qualified health center (FQHC) be reimbursed for a covered telemedicine medical service or telehealth service delivered by a health care provider to a Medicaid recipient.

Texas Department of State Health Services

Adopted Rules

Repealing 25 TAC, Chapter 415, Subchapter C in its entirety to allow HHSC to assume authority over the drug formulary for mental health services

CHAPTER 415. PROVIDER CLINICAL RESPONSIBILITIES–MENTAL HEALTH SERVICESSUBCHAPTER C. USE AND MAINTENANCE OF DEPARTMENT OF STATE HEALTH SERVICES/DEPARTMENT OF AGING AND DISABILITY SERVICES DRUG FORMULARY25 TAC §§415.101 – 415.111OVERVIEWThe Texas Health and Human Services Commission (HHSC) adopts the repeal of §415.101, concerning Purpose; §415.102, concerning Application; §415.103, concerning Definitions; §415.104, concerning General Requirements; §415.105, concerning Organization of DSHS/DADS Drug Formulary; §415.106, concerning Executive Formulary Committee; §415.107, concerning Responsibilities of the Executive Formulary Committee; §415.108, concerning Applying to Have a Drug Added to the Formulary; §415.109, concerning Changing the DSHS/DADS Drug Formulary; §415.110, concerning Prescribing Non-formulary Drugs; and §415.111, concerning Adverse Drug Reactions.The repeals of §§415.101 – 415.111 are adopted without changes to the proposed text as published in the October 23, 2020, issue of the Texas Register (45 TexReg 7519). The sections will not be republished.BACKGROUND AND JUSTIFICATION The repeals reflect the transition of programs from the Department of State Health Services to HHSC. The repeals are replaced by Texas Administrative Code Title 26, Part 1, Chapter 306, Subchapter G, new §§306.351 – 306.360. The new sections are adopted simultaneously elsewhere in this issue of the Texas Register.

Texas Health and Human Services Commission

Adopted Rules

New 26 TAC, Chapter 306, Subchapter G, establishing HHSC’s authority over the drug formulary for mental health services

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEMSUBCHAPTER G. USE AND MAINTENANCE OF THE HEALTH AND HUMAN SERVICES COMMISSION PSYCHIATRIC DRUG FORMULARY26 TAC §§306.351 – 306.360OVERVIEWThe Texas Health and Human Services Commission (HHSC) adopts new §306.351, concerning Purpose; §306.352, concerning Application; §306.353, concerning Definitions; §306.354, concerning General Requirements; §306.355, concerning Organization of HHSC Psychiatric Drug Formulary; §306.356, concerning Responsibilities of the Psychiatric Executive Formulary Committee; §306.357, concerning Adding a Drug to the HHSC Psychiatric Drug Formulary; §306.358, concerning Changing the HHSC Psychiatric Drug Formulary; §306.359, concerning Prescribing Non-formulary Drugs; and §306.360, concerning Adverse Drug Reactions, in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 306, Subchapter G.Section 306.354 and §306.359 are adopted with changes to the proposed text as published in the October 23, 2020, issue of the Texas Register (45 TexReg 7520). The sections will be republished.Sections 306.351, 306.352, 306.353, 306.355, 306.356, 306.357, 306.358, and 306.360 are adopted without changes to the proposed text as published in the October 23, 2020, issue of the Texas Register (45 TexReg 7520). The sections will not be republished.BACKGROUND AND JUSTIFICATION The new sections reflect the move of programs to HHSC from two other agencies. The rules are updated to contain plain language where possible, and provide a simple description of the composition and operation of the agency’s formulary committee. These sections replace repealed sections from 25 TAC Chapter 415, Subchapter C and 40 TAC Chapter 5, Subchapter C. The repeals of these rules are adopted simultaneously elsewhere in this issue of the Texas Register.

Texas Department on Aging and Disability Services

Adopted Rules

Repealing 40 TAC, Chapter 5, Subchapter C in its entirety to allow HHSC to assume authority over the drug formulary for mental health services

CHAPTER 5. PROVIDER CLINICAL RESPONSIBILITIES–INTELLECTUAL DISABILITY SERVICESSUBCHAPTER C. USE AND MAINTENANCE OF DRUG FORMULARY40 TAC §§5.101 – 5.114OVERVIEWAs required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1.Therefore, the Executive Commissioner of HHSC adopts the repeal of §5.101, concerning Purpose; §5.102, concerning Application; §5.103, concerning Definitions; §5.104, concerning General Requirements; §5.105, concerning Organization of TDMHMR Drug Formulary; §5.106, concerning Executive Formulary Committee; §5.107, concerning Responsibilities of the Executive Formulary Committee; §5.108, concerning Applying to Have a Drug Added to the Formulary; §5.109, concerning Changing the TDMHMR Drug Formulary; §5.110, concerning Prescribing Non-formulary Drugs; §5.111, concerning Adverse Drug Reactions; §5.112, concerning Exhibit; §5.113, concerning References; and §5.114, concerning Distribution.The repeals of §§5.101 – 5.114 are adopted without changes to the proposed text as published in the October 23, 2020, issue of the Texas Register (45 TexReg 7544). The sections will not be republished.BACKGROUND AND JUSTIFICATION The repeals reflect the transition of programs from the Department of Aging and Disability Services to HHSC. The repeals are replaced by Texas Administrative Code Title 26, Part 1, Chapter 306, Subchapter G, new §§306.351 – 306.360. The new sections are adopted simultaneously elsewhere in this issue of the Texas Register.

Texas Health and Human Services Commission

In Addition

Notice of public hearing on proposed Medicaid payment rates for the Medical Policy Review of Autism Services

OVERVIEWThe Texas Health and Human Services Commission (HHSC) will conduct a public hearing on March 16, 2021, at 9:00 a.m. CST, to receive comment on proposed Medicaid payment rates for the Medical Policy Review of Autism Services.THE PROPOSAL The proposed payment rates were calculated in accordance with Title 1 of the Texas Administrative Code:§355.8085, which addresses the reimbursement methodology for physicians and other practitioners; and§355.8441, which addresses the reimbursement methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) services (known in Texas as Texas Health Steps). A briefing packet describing the proposed payment rates will be made available at https://rad.hhs.texas.gov/rate-packets on or after March 5, 2021.HEARING DETAILS Due to the declared state of disaster stemming from COVID-19, this hearing will be conducted online only. Please register for the hearing at:https://attendee.gotowebinar.com/register/3156130948249179659. After registering, you will receive a confirmation email containing information about joining the webinar.PUBLIC COMMENT Written comments regarding the proposed payment rates may be submitted in lieu of, or in addition to, oral testimony until 5 p.m. the day of the hearing. Written comments may be sent by U.S. mail, overnight mail, special delivery mail, hand delivery, fax, or email at addresses listed in this week’s edition of the Texas Register (46 Tex Reg 1300). 

Texas Health and Human Services Commission

In Addition

Public Notice – Texas State Plan for Medical Assistance Amendments (effective March 1, 2021)

OVERVIEWThe 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 are effective March 1, 2021.PROPOSED AMENDMENTS The purpose of the amendments is to update the fee schedules in the current state plan by adjusting fees, rates, or charges for the following services:Ambulatory Surgical Centers/Hospital Based Ambulatory Surgical Centers;Birthing Center Facility Services;Clinical Diagnostic Laboratory Services;Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS);Early and Periodic Screening, Diagnosis, and Treatment Services (EPSDT);Home Health Services;Outpatient Hospital Services; andPhysicians and Other Practitioners.Interested parties may obtain additional information and/or a free copy of the proposed amendments by contacting Cynthia Henderson, State Plan Policy Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, TX 78711; by telephone at (512) 487-3349; by facsimile at (512) 730-7472; or by e-mail 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 COMMENT Written comments about the proposed amendments and/or requests to review comments may be sent by U.S. mail, overnight mail, special delivery mail, hand delivery, fax, or email at addresses listed in this week’s edition of the Texas Register (46 Tex Reg 1301). 

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