Texas Register January 21, 2022 Volume: 47 Number: 3

Texas Register Table of Contents

1 Health and Human Services Commission
2 Department of Aging and Disability Services
- - 2.0.1 Emergency Rules Re:
    - 2.0.1.1 Renewing 40 TAC §9.597 to describe requirements for Texas Home Living providers in order to reduce the risk of COVID-19 transmission.
3 Department of State Health Services
- - 3.0.1 In Addition Re:
    - 3.0.1.1 Notice of Compliance with Temporary Injunction Issued by Presiding Judge Jan Soifer on November 8, 2021 Ordering DSHS to Change the Definitions of Tetrahydrocannabinol and Marihuana Extract.
    - 3.0.1.2 Order Placing PMMA in Schedule I, Extending the Temporary Scheduling of Six Cathinones, and Maintaining Remimazolam in Schedule IV

Health and Human Services Commission

Emergency Rules Re:

Renewing 26 TAC §500.1 to describe updated requirements for the operation of certain off-site inpatient facilities.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER A. HOSPITALS
26 TAC §500.1

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency new §500.1 for a 60-day period. The text of the emergency rule was originally published in the September 24, 2021, issue of the Texas Register (46 Tex Reg 6317).

HHSC is renewing an emergency rule to allow a currently licensed hospital to operate an off-site inpatient facility without obtaining a new license at: (1) another type of facility currently licensed or licensed within the past 36 months or a facility pending licensure that has passed its final architectural review inspection, such as an ambulatory surgical center, an assisted living facility, a freestanding emergency medical care facility, an inpatient hospice unit, a mental hospital, or a nursing facility; (2) an outpatient facility operated by the hospital; (3) a formerly licensed hospital that closed within the past 36 months or a hospital pending licensure that has passed its final architectural review inspection; (4) a hospital exempt from licensure; and (5) a mobile, transportable, or relocatable unit.

To allow operation of additional off-site facilities, this emergency rule also allows a waiver of the requirement for off-site facilities to be open or licensed within the past 36 months, at HHSC’s discretion.

This emergency rule also temporarily permits a currently licensed hospital to designate a specific part of its hospital for use as an off-site facility by another hospital, and to allow another currently licensed hospital to apply to use the first hospital’s designated hospital space as an off-site facility for inpatient care.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code §2001.034, the Executive Commissioner 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 Hospital Off-Site Facilities in Response to COVID-19.

Renewing 26 TAC §500.20 to allow licensed End Stage Renal Disease (ESRD) facilities to apply to operate an off-site outpatient facility without obtaining a new license at certain locations.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER B. END STAGE RENAL DISEASE FACILITIES
26 TAC §500.20

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency amended §500.20 for a 60-day period. The text of the emergency rule was originally published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6613).

HHSC is renewing an emergency rule to allow a currently licensed ESRD facility to apply to operate an off-site outpatient facility without obtaining a new license at: (1) an ESRD facility that is no longer licensed that closed within the past 36 months; (2) a mobile, transportable, or relocatable medical unit; (3) a physician’s office; or (4) an ambulatory surgical center or freestanding emergency medical care facility that is no longer licensed that closed within the past 36 months.

BACKGROUND AND JUSTIFICATION

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

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 exists and requires immediate adoption of this emergency rule for ESRD Off-Site Facilities During the COVID-19 Pandemic.

Amending 26 TAC §745.115 to clarify that a program that provides care exclusively to unlawfully present individuals is exempt from licensure and regulation by HHSC.

CHAPTER 745. LICENSING
SUBCHAPTER C. OPERATIONS THAT ARE EXEMPT FROM REGULATION
DIVISION 2. EXEMPTIONS FROM REGULATION
26 TAC §745.115

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Texas Administrative Code Title 26 Part 1, Chapter 745, Licensing, new §745.10301 and amended §745.115, in response to the Governor’s May 31, 2021, proclamation certifying an ongoing and imminent threat due to individuals unlawfully crossing the Texas-Mexico border.

The new emergency rule §745.10301 provides that child-care programs that are exempt from licensure and regulation by HHSC operate separately from child-care operations that are licensed or certified by HHSC. The emergency amendment of §745.115 clarifies that a program that provides care exclusively to unlawfully present individuals, as defined in §745.10301, is exempt from licensure and regulation by HHSC.

BACKGROUND AND JUSTIFICATION

The purpose of the emergency rulemaking is to continue complying with the Governor’s direction in the May 31, 2021, proclamation declaring a state of disaster in certain Texas counties and for affected state agencies. In this proclamation, the Governor directed HHSC to take all necessary steps to discontinue state licensing of certain child-care facilities that shelter or detain unlawful immigrants or other individuals not lawfully present in the United States. The Governor suspended Texas Human Resources Code §42.046 and §42.048 and all other relevant laws to the extent necessary for HHSC to comply with this direction. To date, this proclamation remains in effect, and HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of these emergency rule and emergency rule amendment until such time that HHSC can adopt permanent rules to comply with the Governor’s declaration.

New 26 TAC §745.10301, providing that child-care programs that are exempt from licensure and regulation by HHSC operate separately from child-care operations that are licensed or certified by HHSC.

CHAPTER 745. LICENSING
SUBCHAPTER X. EMERGENCY RULES
26 TAC §745.10301

OVERVIEW

BACKGROUND AND JUSTIFICATION

Proposed Rules Re:

Amending 1 TAC §355.312 to describe updated requirements related to the reimbursement methodology for nursing facilities.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER C. REIMBURSEMENT METHODOLOGY FOR NURSING FACILITIES
1 TAC §355.312

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.312, concerning Reimbursement Setting Methodology–Liability Insurance Costs.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to streamline the payment of liability insurance add-on rates by replacing the current certification requirements with an annual provider attestation to be completed during an open enrollment period. The amendment seeks to improve the timeliness of payments for add-on rates to nursing facility (NF) providers serving Medicaid residents for maintaining acceptable liability insurance coverage, in accordance with Section 32.028(h) of the Texas Human Resources Code. The proposed amendment defines eligibility criteria and clarifies how the add-ons are paid for new facilities and for facilities undergoing a change of ownership. This amendment also describes the circumstances under which HHSC may recoup the add-on payments.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.312(a) adds an introductory paragraph to clarify the purpose of this section and relabels the definition section to subsection (b).
The proposed amendment to new §355.312(b) adds definitions for “provider,” “rate year,” and “open enrollment period” and alphabetizes the terms. Language regarding payment rate determination is moved to subsection (d).
The proposed amendment adds new subsection (c), which establishes the eligibility criteria for a provider to receive and retain liability insurance coverage rate add-ons from HHSC. The amendment moves language currently in subsection (c) to subsection (f)(2).
The proposed amendment to new §355.312(d) updates formatting and references. This subsection was previously located in subsection (b), and it describes the methodology that is used to determine add-on rates.
The proposed amendment adds a new subsection (e), which describes the annual open enrollment period during which providers may submit an attestation described in subsection (f).
The proposed amendment adds a new subsection (f), which describes the attestation that providers must submit to comply with subsection (c)(3) during the open enrollment period described in subsection (e) prior to the rate year the liability insurance add-ons will be paid. Subsection (f)(1) requires that the provider indicate the type of liability insurance it purchased. Subsection (f)(2) establishes the attestation requirements for providers who have purchased insurance through an entity determined by the Texas Department of Insurance to be authorized to issue liability insurance policies in the State of Texas. Subsection (f)(2) incorporates language from current subsection (c). Subsection (f)(3) establishes the attestation for providers who have purchased independently procured liability insurance. Subsection (f)(3) incorporates language from current subsection (d). Subsection (f)(4) establishes the attestation for providers who have purchased liability insurance through a captive insurance company. Subsection (f)(4) incorporates language from current subsection (e). Subsection (f)(5) requires a provider to attest that it has not obtained insurance from an insurer or person engaged in unauthorized insurance, as set forth in Chapter 101 of the Texas Insurance Code, Unauthorized Insurance. Subsection (f)(5) incorporates language from current subsection (f).
The proposed amendment deletes current subsections (g) and (h). Language concerning the circumstances in which a provider would qualify to receive add-on rates in subsection (g) is established in new subsection (c). Subsection (h) is no longer applicable.
The proposed amendment adds new §355.312(g), which revises language currently in subsection (i) regarding a provider’s responsibility to notify HHSC of changes in liability insurance coverage during a rate year for which liability insurance add-ons are being paid.
The proposed amendment adds new §355.312(h), which describes the process through which newly contracted providers can request to receive liability insurance rate add-ons.
The proposed amendment adds new §355.312(i), which describes payment of the liability insurance add-on rates for facilities that undergo a change of ownership.
The proposed amendment adds new §355.312(j), which describes the circumstances under which HHSC may recoup a provider’s add-on rates.

Adopted Rules Re:

Amending 26 TAC §745.8913 to clarify how Licensing will determine whether another state’s license requirements are substantially equivalent to the requirements for an administrator’s license.

CHAPTER 745. LICENSING
SUBCHAPTER N. ADMINISTRATOR’S LICENSING
DIVISION 1. OVERVIEW OF ADMINISTRATOR’S LICENSING
26 TAC §745.8913

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §745.8913, concerning Can my licensure in another state qualify me for an administrator’s license; §745.8933, concerning What must a complete application to become a licensed administrator include; §745.9025, concerning What terms must I know to understand this division; §745.9026, concerning What special considerations can Licensing give to a military member, military spouse, or military veteran that applies for an administrator’s license; §745.9027, concerning What must a military member, military spouse, or military veteran submit to Licensing to receive special consideration during the application process; and §745.9030, concerning When may a military spouse with a license in another state act as an administrator without a license under this subchapter.

The amendments to §§745.8913, 745.9025, and 745.9030 are adopted without changes to the proposed text as published in the October 29, 2021, issue of the Texas Register (46 Tex Reg 7352). These rules will not be republished.

The amendment to §745.8913 adds a citation to clarify how Licensing will determine whether another state’s license requirements are substantially equivalent to the requirements for an administrator’s license under this subchapter.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to comply with House Bill 139, 87th Legislature, Regular Session, 2021, which amended §§55.001, 55.004, and 55.0041 of Texas Occupations Code. The adopted amendments will update the current requirements for a military member, spouse, or veteran that applies for an administrator’s license for a general residential operation, child-placing agency, or both, including a military spouse with an equivalent license in another state seeking to act as an administrator without obtaining an administrator’s license. Specifically, the adopted amendments (1) expand military members of armed forces to include members of the space force; (2) clarify that a military member, spouse, or veteran must receive credit for any training, education, or experience that meets a requirement for an administrator’s license; and (3) require a military spouse with a license in another state seeking to act as an administrator without obtaining an administrator’s license to submit a copy of the permanent change of station order for the military member to whom the spouse is married to establish residency. In addition, HHSC is adopting amendments to the rules, including the addition of citations, to improve the readability and understanding of the rules.

Amending 26 TAC §745.8933 to outline application requirements to become a licensed administrator.

CHAPTER 745. LICENSING
SUBCHAPTER N. ADMINISTRATOR’S LICENSING
DIVISION 2. SUBMITTING YOUR APPLICATION MATERIALS
26 TAC §745.8933

OVERVIEW

The amendments to §§745.8933, 745.9026, and 745.9027 are adopted with changes to the proposed text as published in the October 29, 2021, issue of the Texas Register (46 Tex Reg 7352). These rules will be republished.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §§745.9025 – 745.9027, 745.9030 to update administrator licensing requirements for military members, military spouses, and military veterans.

CHAPTER 745. LICENSING
SUBCHAPTER N. ADMINISTRATOR’S LICENSING
DIVISION 5. MILITARY MEMBERS, MILITARY SPOUSES, AND MILITARY VETERANS
26 TAC §§745.9025 – 745.9027, 745.9030

OVERVIEW

BACKGROUND AND JUSTIFICATION

Department of Aging and Disability Services

Emergency Rules Re:

Renewing 40 TAC §9.597 to describe requirements for Texas Home Living providers in order to reduce the risk of COVID-19 transmission.

CHAPTER 9. INTELLECTUAL DISABILITY SERVICES–MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
SUBCHAPTER N. TEXAS HOME LIVING (TXHML) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)
40 TAC §9.597

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency new §9.597 for a 60-day period. The text of the emergency rule was originally published in the September 24, 2021, issue of the Texas Register (46 Tex Reg 6319).

HHSC is renewing an emergency rule to reduce the risk of spreading COVID-19 to individuals in the Texas Home Living program. This new rule describes the requirements that Texas Home Living providers must immediately put into place.

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 Program Provider Response to COVID-19 Emergency Rule.

Department of State Health Services

In Addition Re:

Notice of Compliance with Temporary Injunction Issued by Presiding Judge Jan Soifer on November 8, 2021 Ordering DSHS to Change the Definitions of Tetrahydrocannabinol and Marihuana Extract.

OVERVIEW

On November 8, 2021 at 10:22 a.m., in the case Sky Marketing Corp., et al. v. Texas Department of State Health Services, and John Hellerstedt, in his official capacity as Commissioner of the Texas DSHS, in the District Court of Travis County, 126th Judicial District, Judge Soifer ordered the Department to “remove from its currently published Schedule of Controlled Substances the most recent modifications of the definitions to the following terms: ‘(31) Tetrahydrocannabinols’ and ‘(58) Marihuana extract,’ and any subsequent publications of the same (if any) until further order of this Court.”

DSHS issues this notice of compliance with the court’s order. DSHS interprets the court’s order as temporarily enjoining the definitions of “tetrahydrocannabinols” and “marihuana extract” in the annual publication of the Schedules of Controlled Substances published on March 19, 2021, 46 Tex. Reg. 1763, to the extent they deviate from the definitions of “tetrahydrocannabinols and “marihuana extract” published in the 2020 Schedules of Controlled Substances published on March 27, 2020, 45 Tex. Reg. 2251. DSHS interprets the court’s order as temporarily reinstating the definition of “tetrahydrocannabinols” and “marihuana extract” published in the annual Schedules of Controlled Substances published on March 27, 2020, including amendments and updates issued prior to the publication of the 2021 Schedules on March 19, 2021.

DETAILS

The 2020 Schedules of Controlled Substances defines “tetrahydrocannabinols” as

(31) Tetrahydrocannabinols, meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (cannabis plant), except for tetrahydrocannabinols in hemp (as defined under Section 297A(1) of the Agricultural Marketing Act of 1946), as well as synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of such plant, and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, such as the following:

1 cis or trans tetrahydrocannabinol, and their optical isomers;

6 cis or trans tetrahydrocannabinol, and their optical isomers;

3,4 cis or trans tetrahydrocannabinol, and its optical isomers;

(Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions are covered.);

45 Tex. Reg. 2251 (March 27, 2020).

The 2020 Schedule of Controlled Substances defines “marihuana extract” as follows:

(58) Marihuana extract, meaning an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis, other than the separated resin (whether crude or purified obtained from the plant;

45 Tex. Reg. 2252 (March 27, 2020).

Order Placing PMMA in Schedule I, Extending the Temporary Scheduling of Six Cathinones, and Maintaining Remimazolam in Schedule IV

OVERVIEW

The Drug Enforcement Agency adopted, without change, an interim final rule published October 6, 2020, placing remimazolam, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible, in schedule IV of the Controlled Substances Act. This final rule was published in the June 2, 2021 issue of the Federal Register, Volume 86, Number 104, pages 29506-29509 and was effective July 2, 2021.

BACKGROUND AND JUSTIFICATION

The Drug Enforcement Administration issued a final rule placing 1-(4- methoxyphenyl)-N-methylpropan-2-amine, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation, in schedule I of the Controlled Substances Act to enable the United States to meet its obligations under the 1971 Convention on Psychotropic Substances. This rule was published in the June 25, 2021 issue of the Federal Register, Volume 86, Number 120, pages 33508-33510 and was effective July 26. 2021.