Texas Register January 14, 2022 Volume: 47 Number: 2

Texas Register Table of Contents

1 Health and Human Services Commission
2 Department of State Health Services
- - 2.0.1 Adopted Rules Re:
    - 2.0.1.1 Amending 25 TAC §97.7 to describe the criteria for COVID-19 that require exclusion from schools and provides guidance on readmission criteria.
    - 2.0.1.2 New 25 TAC §§229.1 – 229.4 to describe disclosure requirements for prescription drug prices.
  - 2.0.2 In Addition Re:
    - 2.0.2.1 Licensing Actions for Radioactive Materials
3 Texas Board of Nursing
- - 3.0.1 Review of Agency Rules Re:
    - 3.0.1.1 Reviewing §§225.1 – 225.15, which concerns RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions, §§225.1 – 225.15.
4 Texas Council for Developmental Disabilities
- - 4.0.1 In Addition Re:

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §553.2004, requiring assisted living facilities to accurately report COVID-19 vaccination data for staff and residents to HHSC in the format established by HHSC within 24 hours of completing a round of vaccinations.

CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
SUBCHAPTER K. COVID-19 RESPONSE
26 TAC §553.2004

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 553, Licensing Standards for Assisted Living Facilities, new §553.2004, concerning an emergency rule to track vaccinations of staff and residents in long-term care facilities in Texas in response to COVID-19.

HHSC is adopting an emergency rule to require assisted living facilities to accurately report COVID-19 vaccination data for staff and residents to HHSC in the format established by HHSC within 24 hours of completing a round of vaccinations. This rule is necessary to accurately track vaccinations of staff and residents in long-term care facilities in Texas.

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 Vaccination Data Reporting and Emergency Communication System Enrollment.

New 26 TAC §554.2804, describing requirements to accurately track vaccinations of staff and residents in long-term care facilities in Texas and to facilitate timely emergency communications between HHSC and nursing facilities in Texas.

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER CC. COVID-19 EMERGENCY RULE
26 TAC §554.2804

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 554, Nursing Facility Requirements for Licensure and Medicaid Certification, new §554.2804, concerning an emergency rule in response to COVID-19 in order to track vaccinations of staff and residents in nursing facilities in Texas and require enrollment for the emergency communication system.

HHSC is adopting an emergency rule to require nursing facilities to accurately report COVID-19 vaccination data for staff and residents to HHSC in the format established by HHSC within 24 hours of becoming aware of a staff or resident’s COVID-19 vaccination and to require the administrator and director of nurses to enroll in an emergency communication system. The rule is necessary to accurately track vaccinations of staff and residents in long-term care facilities in Texas and to facilitate timely emergency communications between HHSC and nursing facilities in Texas.

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. 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 Nursing Facility COVID-19 Vaccination Data Reporting and Emergency Communication System Enrollment.

Proposed Rules Re:

Repealing 1 TAC §355.8068, which concerns reimbursement rates for medicaid hospital services.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 4. MEDICAID HOSPITAL SERVICES
1 TAC §355.8068

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §355.8068, concerning Local Provider Participation Fund Reporting in Subchapter J, Division 4 and proposes new Subchapter L comprised of §355.8701, concerning Purpose; §355.8702, concerning Definitions; §355.8703, concerning Applicability; §355.8704, concerning Reporting and Monitoring; §355.8705, concerning Post-Determination Review; and §355.8706, concerning State and Federal Reporting.

The proposed repeal of §355.8068 deletes the rule as it is no longer necessary, because the content of the rule is encompassed within proposed new Subchapter L.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement the requirements of the 2022-23 General Appropriations Act (GAA), Senate Bill (S.B.) 1, 87th Legislature, Regular Session (Article II, HHSC, Rider 15(b)), which requires HHSC to create an annual report to include: information on all mandatory payments to a Local Provider Participation Fund (LPPF) and all uses for such payments, including the amount of funds from an LPPF for each particular use; the total amount of intergovernmental transfers used to support Medicaid; the total amount of certified public expenditures used to support Medicaid; a summary of any survey data collected by HHSC to provide oversight and monitoring of the use of local funds in the Medicaid program; and all financial reports submitted to the Centers for Medicare and Medicaid Services (CMS).

The proposal is also necessary to comply with the requirements of 42 CFR §433.51, Public Funds as the State Share of Financial Participation, 42 CFR §433.68, Permissible Health Care-Related Taxes, 42 CFR §433.74, Reporting Requirements, and §§1903(w)(1)(A)(i), 1903(w)(1)(A)(i)(I), and 1903(w)(1)(A)(ii) of the Social Security Act.

This rule will ensure that public funds considered as the state’s share in claiming federal financial participation (FFP) will meet all state and federal statutes and regulations.

New 1 TAC §§355.8701 – 355.8706, implementing requirements related to local funds monitoring.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER L. LOCAL FUNDS MONITORING
1 TAC §§355.8701 – 355.8706

OVERVIEW

BACKGROUND AND JUSTIFICATION

This rule will ensure that public funds considered as the state’s share in claiming federal financial participation (FFP) will meet all state and federal statutes and regulations.

SECTION-BY-SECTION SUMMARY

Proposed new §355.8701, Purpose, provides introductory language on the purpose of the rules in new Subchapter L.
Proposed new §355.8702, Definitions, provides definitions for terms referenced in new Subchapter L.
Proposed new §355.8703, Applicability, provides the timelines for the phases of implementation for each governmental entity based on the funds used (LPPF/other provider taxes, Non-LPPF/other provider taxes, or Certified Public Expenditures) and the type of providers it is supporting with local funds (Hospitals versus Non-Hospitals).
Proposed new §355.8704, Reporting and Monitoring, establishes the processes HHSC will use to collect information from governmental entities for use in an annual survey as required by Rider 15(b). It also describes the types of information and documentation HHSC will be collecting and how HHSC will use the information collected to determine compliance, assess risk, and conduct in-depth reviews.
Proposed new §355.8705, Post-Determination Review, provides how governmental entities may request a post-determination review if the entity disputes HHSC’s actions or determinations regarding the permissibility of local funds for transfer to HHSC.
Proposed new §355.8706, State and Federal Reporting, provides that HHSC may adjust the frequency and content of the reports used to document local funds monitoring efforts to comply with state and federal reporting requirements.

Amending 1 TAC §355.8101 to update requirements for rural health clinics.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 6. RURAL HEALTH CLINICS
1 TAC §355.8101

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.8101, concerning Rural Health Clinics Reimbursement.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed amendment to §355.8101 is to comply with House Bill 4 (H.B. 4), 87th Legislature, Regular Session, 2021, and to make other amendments to enhance clarity, consistency, and specificity. HHSC is required by H.B. 4 to ensure a Rural Health Clinic (RHC) is reimbursed for a covered telemedicine medical service or telehealth service delivered by a health care provider to a Medicaid recipient at an RHC facility.

The proposed rule includes reformatted text for clarity and transparency in subsection (h) and subsection (l) with form updates in subsection (j). Additional clarifying updates are made to ensure consistency throughout the rule and that the rule appropriately describes current practices.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.8101(a) updates references that have been renumbered.
The proposed amendment to §355.8101(c), (d), and (e) hyphenates certain terms, clarifies certain terms, and provides other minor changes for clarity and better readability.
The proposed amendment to §355.8101(h) restructures the subsection to make the information easier to read. No substantive content changes.
The proposed amendment to §355.8101(j) updates the required CMS forms to the most current forms.
The proposed amendment to §355.8101(l) deletes the current subsection (l) and a new subsection (l) is proposed. The content from the current subsection (l) is restructured to make it easier to read. Minor content changes are made to text, including the cost report period used in the cost settlement and rate assignment for a new freestanding RHC location that is part of an existing freestanding RHC.
The proposed amendment to §355.8101 deletes subsection (m) to remove the state’s quarterly supplemental payment established to offset the difference between Managed Care Organizations and the Prospective Payment System (PPS), as this adjustment has not occurred after 2008.
The proposed amendment to §355.8101 deletes subsection (n) to eliminate an inconsistency within the rule.
The proposed amendment to §355.8101 renumbers subsection (o) to subsection (m) and adds “telemedicine medical service” to the types of encounters included in the definition of a medical visit.
The proposed amendment to §355.8101 renumbers subsection (p) to subsection (n) and adds “telehealth service” to the types of encounters included in the definition of an “other” health visit.

Adopted Rules Re:

Amending 1 TAC §353.1305 to extend the date for the Uniform Hospital Rate Increase Program (UHRIP) to apply to program periods before September 2, 2022, or as approved by CMS.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES
1 TAC §353.1305

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §353.1305, concerning the Uniform Hospital Rate Increase Program (UHRIP). Section 353.1305 is adopted without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6621). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment to §353.1305 is adopted to extend the date for the UHRIP to apply to program periods before September 2, 2022, or as approved by the Centers for Medicare and Medicaid Services (CMS).

In Addition Re:

Correcting the chapter name for 26 TAC §902.1.

The Texas Health and Human Services Commission adopted new 26 TAC §902.1 in the December 31, 2021, issue of the Texas Register (46 Tex Reg 9400). Due to an error by the Texas Register, the chapter name was listed incorrectly. The correct chapter name is CONTINUITY OF SERVICES–TRANSFERRING INDIVIDUALS FROM STATE SUPPORTED LIVING CENTERS TO STATE HOSPITALS.

Department of State Health Services

Adopted Rules Re:

Amending 25 TAC §97.7 to describe the criteria for COVID-19 that require exclusion from schools and provides guidance on readmission criteria.

CHAPTER 97. COMMUNICABLE DISEASES
SUBCHAPTER A. CONTROL OF COMMUNICABLE DISEASES
25 TAC §97.7

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts an amendment to §97.7, concerning COVID-19 school exclusion criteria. The amendment to §97.7 is adopted without changes to the proposed text as published in the November 5, 2021, issue of the Texas Register (46 Tex Reg 7494) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment describes the criteria for COVID-19 that require exclusion from schools and provides guidance on readmission criteria. To protect children returning to school and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC, on behalf of DSHS, adopted an emergency rule amendment to §97.7 published in the August 13, 2021, issue of the Texas Register (46 Tex Reg 4922). To make this change permanent, DSHS and HHSC proposed an amendment to §97.7.

New 25 TAC §§229.1 – 229.4 to describe disclosure requirements for prescription drug prices.

CHAPTER 229. FOOD AND DRUG
SUBCHAPTER A. PRESCRIPTION DRUG PRICE DISCLOSURE
25 TAC §§229.1 – 229.4

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts new §§229.1 – 229.4, concerning Prescription Drug Price Disclosure. Sections 229.1 – 229.4 are adopted without changes to the proposed text as published in the October 22, 2021, issue of the Texas Register (46 Tex Reg 7189) and will not be republished.

BACKGROUND AND JUSTIFICATION

In 2019, House Bill (H.B.) 2536 created Texas Health and Safety Code Chapter 441 requiring drug manufacturers to report the wholesale acquisition cost of all United States Food and Drug Administration-approved drugs sold in or into Texas. Manufacturers were also required to report on price increases exceeding a certain threshold compared to prices at certain time frames, and manufacturers were required to provide reasons for the price increase on the HHSC website. No rules were developed.

The adopted new sections are necessary to comply with H.B. 1033, 87th Legislature, Regular Session, 2021, that amended Texas Health and Safety Code, Chapter 441. H.B. 1033 transferred the program from HHSC to DSHS and requires prescription drug manufacturers to report certain cost data and price increases for prescription drugs. The promulgation of rules allows DSHS to administer fines for failure to disclose price increases. The new rules require a $250 fee when drug manufacturers submit each report.

In Addition Re:

Licensing Actions for Radioactive Materials

OVERVIEW

During the first half of December 2021, 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.

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.

Texas Board of Nursing

Review of Agency Rules Re:

Reviewing §§225.1 – 225.15, which concerns RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions, §§225.1 – 225.15.

OVERVIEW

In accordance with Government Code §2001.039, the Texas Board of Nursing (Board) filed a notice of intention to review and consider for re-adoption, re-adoption with amendments, or repeal, the following chapter contained in Title 22, Part 11, of the Texas Administrative Code, pursuant to the 2019 rule review plan adopted by the Board at its July 2018 meeting. The notice appeared in the November 26, 2021, edition of the Texas Register (46 Tex Reg 8079).

Chapter 225. RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions, §§225.1 – 225.15.

BACKGROUND AND JUSTIFICATION

The Board did not receive any public comments on the above rules. The Board has completed its review and has determined that the reasons for originally adopting the above rules continue to exist. The rules were also reviewed to determine whether they were obsolete, whether they reflected current legal and policy considerations and current procedures and practices of the Board, and whether they were in compliance with Texas Government Code Chapter 2001 (Texas Administrative Procedure Act). The Board finds that the rules are not obsolete, reflect current legal and policy considerations, current procedures and practices of the Board, and that the rules are in compliance with the Texas Administrative Procedure Act.

The Board readopts the rules in Chapter 225 without changes, pursuant to the Texas Government Code §2001.039 and Texas Occupations Code §301.151, which authorizes the Board to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act. This concludes the rule review of Chapter 225 under the 2019 rule review plan adopted by the Board.

Texas Council for Developmental Disabilities

In Addition Re:

Request for Applications: TCDD New Initiatives

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) announces the availability of funds for up to five organizations to implement New Initiatives Projects.

BACKGROUND AND JUSTIFICATION

The purpose of offering funding for the projects described in this Request for Proposals (RFP) is to implement field-initiated projects and innovative solutions to a statewide need, regional or local need, and/or the needs of people with developmental disabilities that are consistent with TCDD’s mission to “create change so that all people with disabilities are fully included in their communities and exercise control over their own lives.” Projects may develop a new model, demonstrate a creative approach to promoting community inclusion, and/or address public policy issues. Organizations that apply shall propose the goal of their projects and strategies they will use to meet their goal.

TCDD has approved funding for up to $100,000 per organization, per year, for up to 4 years. Funds available for these projects are provided to TCDD by the U.S. Department of Health and Human Services, Administration on Intellectual and Developmental Disabilities, pursuant to the Developmental Disabilities Assistance and Bill of Rights Act. Funding for the project is dependent on the results of a review process established by TCDD and on the availability of funds. Non-federal matching funds of at least 10% of the total project costs are required for projects in federally designated poverty areas. Non-federal matching funds of at least 25% of total project costs are required for projects in other areas.

Additional information concerning this Request for Applications (RFA) and TCDD is available at https://tcdd.texas.gov/grants-rfas/funding-available-for-grants/ All questions pertaining to this RFA should be directed in writing to TCDD via email at apply@tcdd.texas.gov or via telephone at (512) 437-5432.

DEADLINE

Proposals must be submitted through https://tcdd.smapply.org/prog/lst/. Proposals are due by 11:59 p.m. on March 22, 2022.

Request for Applications: TCDD Postsecondary Programs for Students with Disabilities

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) announces the availability of funds for one organization to conduct a Landscape Analysis and Review of 18+ Programs and Access to Postsecondary Programs for Students with Developmental Disabilities.

BACKGROUND AND JUSTIFICATION

The purpose of offering funding for the projects described in this Request for Applications (RFA) is to increase access to services and improve the quality of supports in postsecondary education. Projects will review, study, and summarize a diverse array of 18+ programs across Texas and include the methods and outcomes related to postsecondary education access, preparation, and partnerships for students with IDD. The project should result in a list of promising and best practices that can be shared with those who support students with IDD and work in the field of secondary transition. Additionally, the results of this project should provide TCDD with background information that can inform future projects relating to increasing postsecondary attainment for students with IDD.

TCDD has approved funding for up to $100,000 for one organization for up to one year. Funds available for these projects are provided to TCDD by the U.S. Department of Health and Human Services, Administration on Intellectual and Developmental Disabilities, pursuant to the Developmental Disabilities Assistance and Bill of Rights Act. Funding for the project is dependent on the results of a review process established by TCDD and on the availability of funds. Non-federal matching funds of at least 10% of the total project costs are required for projects in federally designated poverty areas. Non-federal matching funds of at least 25% of total project costs are required for projects in other areas.

DEADLINE

Proposals must be submitted through https://tcdd.smapply.org/prog/lst/. Proposals are due by 11:59 p.m. on March 22, 2022.

Request for Applications: TCDD Public Policy Fellowship Training

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) announces the availability of funds for up to eight organizations to implement a Public Policy Fellowship Training Program.

BACKGROUND AND JUSTIFICATION

The purpose of offering funding for the projects described in this Request for Applications (RFA) is to increase the number of policy professionals with the requisite skills, knowledge, and experience to engage in disability-related policy activities. By providing entities with the funds and support to increase the knowledge and availability of new leaders to take on challenging assignments in public policy, the State of Texas will improve its capacity to create systems change so that people with disabilities are fully included in their communities and exercise control over their own lives. Grantees will hire and mentor a Fellow and partner with TCDD to provide advanced guidance and technical assistance. Applicants must clearly demonstrate that the focus and goal of their project will be training and guiding the Fellow.

TCDD has approved funding for up to $77,500 per organization, per year, for up to two years. Funds available for these projects are provided to TCDD by the U.S. Department of Health and Human Services, Administration on Intellectual and Developmental Disabilities, pursuant to the Developmental Disabilities Assistance and Bill of Rights Act. Funding for the project is dependent on the results of a review process established by TCDD and on the availability of funds. Non-federal matching funds of at least 10% of the total project costs are required for projects in federally designated poverty areas. Non-federal matching funds of at least 25% of total project costs are required for projects in other areas.

DEADLINE

Proposals must be submitted through https://tcdd.smapply.org/prog/lst/. Proposals are due by 11:59 p.m. on March 22, 2022.