Texas Register January 20, 2023 Volume: 48 Number: 3

Texas Register Table of Contents

1 Texas Department of Insurance, Division of Workers’ Compensation
- - 1.0.1 Proposed Rules Re:
    - 1.0.1.1 Amending 28 TAC §165.1, concerning new updates to references, plain language, and agency style and to add Texas Mutual Insurance Company’s physical address.
2 Texas Health and Human Services Commission
- - 2.0.1 Adopted Rules Re:
  - 2.0.2 In Addition Re:
    - 2.0.2.1 Public Notice – Texas State Plan Amendment effective March 1, 2021
3 Department of State Health Services
- - 3.0.1 In Addition Re:
    - 3.0.1.1 Licensing Actions for Radioactive Materials

Texas Department of Insurance, Division of Workers’ Compensation

Proposed Rules Re:

Amending 28 TAC §165.1, concerning new updates to references, plain language, and agency style and to add Texas Mutual Insurance Company’s physical address.

CHAPTER 165. REJECTED RISK: INJURY PREVENTION SERVICES
28 TAC §165.1

OVERVIEW

The Texas Department of Insurance, Division of Workers’ Compensation (DWC) proposes to amend 28 TAC §165.1, concerning Identification and Notification of Certain Policyholders Insured by the Texas Mutual Insurance Company Acting as the Insurer of Last Resort. Section 165.1 implements Texas Insurance Code §§2054.354, 2054.504, and 2054.507.

BACKGROUND AND JUSTIFICATION

Amending §165.1 is necessary to add Texas Mutual Insurance Company’s (Texas Mutual) physical address, update obsolete Insurance Code references, and make updates for plain language and agency style. Section 165.1 requires Texas Mutual to give DWC a list of policyholders that need accident prevention services, including policyholders they insure as the insurer of last resort. It also requires policyholders who must get a safety consultation and are located outside of Texas to give information to Texas Mutual.

Texas Health and Human Services Commission

Adopted Rules Re:

Amending 1 TAC §354.1430, 354.1432, and 354.1434, and new 1 TAC §§354.1435 and 354.1436, concerning telehealth and audio-only benefits.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
1 TAC §§354.1430, 354.1432, 354.1434 – 354.1436

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, Subchapter A, Division 33, amendments to §354.1430, concerning Definitions; §354.1432, concerning Telemedicine and Telehealth Benefits and Limitations; §354.1434, concerning Home Telemonitoring Benefits and Limitations; and new §354.1435, concerning Provision of Behavioral Health Services through an Audio-Only Platform; and §354.1436, concerning Provision of Non-behavioral Health Services Using an Audio-only Platform; and in Subchapter M, Division 1, amendments to §354.2603, concerning Definitions; §354.2607, concerning Assessment and Service Authorization; and §354.2609, concerning Recovery/Treatment Planning, Recovery/Treatment Plan Review, and Discharge Summary; in Division 2, amendments to §354.2655, concerning Mental Health Targeted Case Management Services; and §354.2657, concerning Documentation Requirements; and in Division 3, amendments to §354.2707, concerning Crisis Intervention Services; §354.2709, concerning Medication Training and Support Services; §354.2711, concerning Psychosocial Rehabilitative Services; and §354.2713, concerning Skills Training and Development Services.

Sections 354.1430, 354.1432, 354.1434, 354.1435, 354.1436, 354.2603, 354.2607, 354.2609, 354.2655, 354.2657, 354.2707, 354.2709, 354.2711, and 354.2713 are adopted without changes to the proposed text as published in the October 21, 2022, issue of the Texas Register (47 TexReg 6921). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The adopted rules are necessary to implement Texas Government Code §531.02161 that was added by House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021. Texas Government Code §531.02161 requires HHSC to develop and implement policies and procedures for the provision of healthcare services delivered via telemedicine and telehealth, including certain behavioral health services using an audio-only platform, by implementing changes in state law.

The adopted rules also implement Texas Government Code, §531.001, amended by Senate Bill (S.B.) 1107, 85th Legislature, Regular Session, 2017 to standardize definitions for telemedicine medical services and telehealth services; Texas Government Code, §531.001 and §531.0217(d), amended by S.B. 670, 86th Legislature, Regular Session, 2019 to require reimbursement parity, to prevent denial of services solely because an in-person medical service did not occur and to not limit a physician’s choice of platform; and Texas Government Code, §531.02164 (c-1), added by H.B. 1063, 86th Legislature, Regular Session, 2019 to allow home telemonitoring services for persons with diabetes, heart disease, and other specific conditions.

Amending 1 TAC §§354.2603, 354.2607, 354.2609, regarding the steps for treatment planning and recovery.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER M. MENTAL HEALTH TARGETED CASE MANAGEMENT AND MENTAL HEALTH REHABILITATION
1 TAC §§354.2603, 354.2607, 354.2609

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 1 TAC §354.2655, §354.2657, concerning mental health targeted case management services and document requirements.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER M. MENTAL HEALTH TARGETED CASE MANAGEMENT AND MENTAL HEALTH REHABILITATION
1 TAC §354.2655, §354.2657

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 1 TAC §§354.2707, 354.2709, 354.2711, 354.2713, regarding crisis intervention services, medication training and support services, and other medical services.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER M. MENTAL HEALTH TARGETED CASE MANAGEMENT AND MENTAL HEALTH REHABILITATION
1 TAC §§354.2707, 354.2709, 354.2711, 354.2713

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §550.209, updating references from the Department of Aging and Disability Services to HHSC.

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER C. GENERAL PROVISIONS
26 TAC §550.209

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) amendments to §550.209, concerning Emergency Preparedness Planning and Implementation, in Title 26, Part 1, Chapter 550, Licensing Standards for Prescribed Pediatric Extended Care Centers.

Amended §550.209 is adopted without changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5717). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services was abolished effective September 1, 2017, after all its functions were transferred to HHSC, in accordance with Senate Bill 200, 84th Legislature, Regular Session, 2015, and Texas Government Code §531.0201 and §531.02011. 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. Therefore, the Executive Commissioner of HHSC adopts amended §550.209 in Title 26, Part 1, Chapter 550.

The amendment is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC.

New 26 TAC §551.50, concerning improved readability and responses to requests for information received through emergency communication systems.

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

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) amendments to §551.50, concerning Emergency Preparedness and Response, in Title 26, Part 1, Chapter 551, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions.

Amended §551.50 is adopted without changes as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5720). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services was abolished effective September 1, 2017, after all its functions were transferred HHSC, in accordance with Senate Bill 200, 84th Legislature, Regular Session, 2015, and Texas Government Code §531.0201 and §531.02011. 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. Therefore, the Executive Commissioner of HHSC adopts amended §551.50 in Title 26, Part 1, Chapter 551.

Amending 26 TAC §553.275, updating references and requiring a facility manager and alternate designee to enroll in an emergency communication system.

CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
SUBCHAPTER E. STANDARDS FOR LICENSURE
26 TAC §553.275

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) amendments to §553.275, concerning Emergency Preparedness and Response, in Title 26, Part 1, Chapter 553, Licensing Standards for Assisted Living Facilities.

Amended §553.275 is adopted without changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5724). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §554.1914, updating references to reflect the transfer from the Department of Aging and Disability Services to HHSC.

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER T. ADMINISTRATION
26 TAC §554.1914

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) amendments to §554.1914, concerning Emergency Preparedness and Response, in Title 26, Part 1, Chapter 554, Nursing Facility Requirements for Licensure and Medicaid Certification.

Amended §554.1914 is adopted without changes as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5729). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §558.256, to improve readability and require enrollment in an emergency communication system in accordance with instructions from HHSC.

CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
SUBCHAPTER C. MINIMUM STANDARDS FOR ALL HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
26 TAC §558.256

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) amendments to §558.256, concerning Emergency Preparedness Planning and Implementation, in Title 26, Part 1, Chapter 558, Licensing Standards for Home and Community Support Services Agencies.

Amended §558.256 is adopted without changes as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5733). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §559.64, updating subsections to reflect the transfer of functions from the Department of Aging and Disability Services to HHSC.

CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
SUBCHAPTER D. LICENSURE AND PROGRAM REQUIREMENTS
26 TAC §559.64

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) amendments to §559.64, concerning Emergency Preparedness and Response, in Title 26, Part 1, Chapter 559, Day Activity and Health Services Requirements.

Amended §559.64 is adopted without changes as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5735). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

New 26 TAC §565.1, requiring the program provider designee to enroll in an emergency communication system in accordance with instructions from HHSC.

CHAPTER 565. HOME AND COMMUNITY-BASED (HCS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) CERTIFICATION STANDARDS
SUBCHAPTER A. EMERGENCY RESPONSE SYSTEM
26 TAC §565.1

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) new §565.1, concerning Emergency Response System, in Title 26, Part 1, new Chapter 565, Home and Community-based Services (HCS) Program and Community First Choice (CFC) Certification Standards.

New §565.1 is adopted without changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5739). HHSC added Subchapter A, Emergency Response System, to the TAC reference. This rule will not be republished.

BACKGROUND AND JUSTIFICATION

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services was abolished effective September 1, 2017, after all its functions were transferred to, in accordance with Senate Bill 200, 84th Legislature, Regular Session, 2015, and Texas Government Code §531.0201 and §531.02011. 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. Therefore, the Executive Commissioner of HHSC adopts new §565.1 in Title 26, Part 1, new Chapter 565.

The new rule is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC.

New 26 TAC §566.1, requiring the program provider designee to enroll in an emergency communication system in accordance with instructions from HHSC.

CHAPTER 566. TEXAS HOME LIVING (TXHML) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) CERTIFICATION STANDARDS
26 TAC §566.1

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) new §566.1, concerning Emergency Response System, in Title 26, Part 1, new Chapter 566, Texas Home Living (TXHML) Program and Community First Choice (CFC) Certification Standards.

New §566.1 is adopted without changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5740). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

New 26 TAC §§745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815, concerning the process of administrative reviews.

CHAPTER 745. LICENSING
SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
26 TAC §§745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC), Title 26, Chapter 745, new Subchapter M, Administrative Reviews and Due Process Hearings, which consists of new §§745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815, 745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855, 745.8871, 745.8873, 745.8875, 745.8877, 745.8879, and 745.8881.

New §§745.8801, 745.8803, 745.8813, and 745.8835 are adopted with changes to the proposed text as published in the September 9, 2022, issue of the Texas Register (47 TexReg 5436). These rules will be republished.

New §§745.8805, 745.8807, 745.8809, 745.8811, 745.8815, 745.8831, 745.8833, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855, 745.8871, 745.8873, 745.8875, 745.8877, 745.8879, and 745.8881 are adopted without changes to the proposed text as published in the September 9, 2022, issue of the Texas Register (47 TexReg 5436). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The new sections are necessary to continue to comply with House Bill (H.B.) 5, 85th Legislature, Regular Session, 2017, directing the Texas Department of Family and Protective Services (DFPS) to become a stand-alone agency that is separate from the Texas Health and Human Services Commission (HHSC) system. This bill also moved the regulation of child care from DFPS to HHSC, with only the responsibility for investigating allegations of child abuse, neglect, and exploitation in child care operations remaining at DFPS.

Since HHSC Child Care Regulation (CCR) is responsible for the administrative rules in TAC, Title 40, Chapter 745, Licensing, that impact child care operations, these rules must be transferred from DFPS to HHSC. CCR already administratively transferred all the rules in Title 40, Chapter 745 to Title 26, Chapter 745, except for Subchapters K and M. Those subchapters could not be administratively transferred because some of the rules also apply to responsibilities that remained with DFPS.

DFPS adopted rules applicable to DFPS responsibilities in Title 40, Chapter 707. Accordingly, CCR is adopting Title 26, Chapter 745, new Subchapter M, Administrative Reviews and Due Process Hearings, and the corresponding rules; to replace the repealed Title 40, Chapter 745, Subchapter M, Administrative Reviews and Due Process Hearings, which are published elsewhere in this issue of the Texas Register.

In addition to replacing the content of the Title 40, Chapter 745, Subchapter M rules with new rules in Title 26, Chapter 745, Subchapter M, the changes in the new Subchapter M rules:

Delete duties that are specific to DFPS, including conducting administrative reviews for DFPS findings of child abuse, neglect, and exploitation in child care operations;
Update the rules to match current practices, including making the rules consistent with statutory changes that have already been operationalized by CCR;
Clarify when a request for an administrative review and due process hearing is timely;
Clarify that administrative reviews will be conducted by HHSC Child Care Enforcement;
Clarify actions a person conducting an administrative review can take at the end of the review;
Extend the time frame a person conducting an administrative review has to issue a decision when no meeting or conference was held;
Clarify the rules for better readability and understanding; and
Add citations for clarity.

New 26 TAC §§745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855, regarding the process and composition of due process hearings.

CHAPTER 745. LICENSING
SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
26 TAC §§745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855

OVERVIEW

BACKGROUND AND JUSTIFICATION

In addition to replacing the content of the Title 40, Chapter 745, Subchapter M rules with new rules in Title 26, Chapter 745, Subchapter M, the changes in the new Subchapter M rules:

Delete duties that are specific to DFPS, including conducting administrative reviews for DFPS findings of child abuse, neglect, and exploitation in child care operations;
Update the rules to match current practices, including making the rules consistent with statutory changes that have already been operationalized by CCR;
Clarify when a request for an administrative review and due process hearing is timely;
Clarify that administrative reviews will be conducted by HHSC Child Care Enforcement;
Clarify actions a person conducting an administrative review can take at the end of the review;
Extend the time frame a person conducting an administrative review has to issue a decision when no meeting or conference was held;
Clarify the rules for better readability and understanding; and
Add citations for clarity.

New 26 TAC §§745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881, regarding outcomes of administrative reviews and types of relief available.

CHAPTER 745. LICENSING
SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
26 TAC §§745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881

OVERVIEW

BACKGROUND AND JUSTIFICATION

In addition to replacing the content of the Title 40, Chapter 745, Subchapter M rules with new rules in Title 26, Chapter 745, Subchapter M, the changes in the new Subchapter M rules:

Delete duties that are specific to DFPS, including conducting administrative reviews for DFPS findings of child abuse, neglect, and exploitation in child care operations;
Update the rules to match current practices, including making the rules consistent with statutory changes that have already been operationalized by CCR;
Clarify when a request for an administrative review and due process hearing is timely;
Clarify that administrative reviews will be conducted by HHSC Child Care Enforcement;
Clarify actions a person conducting an administrative review can take at the end of the review;
Extend the time frame a person conducting an administrative review has to issue a decision when no meeting or conference was held;
Clarify the rules for better readability and understanding; and
Add citations for clarity.

In Addition Re:

Public Notice – Texas State Plan Amendment effective March 1, 2021

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act. The proposed amendment is effective March 1, 2021.

The proposed amendment documents coverage of COVID-19 prevention and treatment as benefits in Texas Medicaid, including coverage for conditions that may seriously complicate COVID-19 treatment.

The proposed amendment is estimated to result in an additional annual aggregate expenditure of $406,815,439 for federal fiscal year (FFY) 2021, consisting of $276,675,180 in federal funds and $130,140,259 in state general revenue. For FFY 2022, the estimated additional annual expenditure is $442,010,076 consisting of $296,146,751 in federal funds and $145,863,325 in state general revenue. For FFY 2023, the estimated additional annual expenditure is $149,511,157 consisting of $57,681,404 in federal funds and $91,829,753 in state general revenue.

Department of State Health Services

In Addition Re:

Licensing Actions for Radioactive Materials

For more information, please visit this week’s edition of the Texas Register at 48 Tex Reg 244.