Texas Register January 6, 2023 Volume: 48 Number: 1

Texas Register Table of Contents

1 Texas Health and Human Services Commission
- - 1.0.1 Adopted Rules Re:
    - 1.0.1.1 Amending 1 TAC §355.8212, §355.8214, concerning waiver payments to hospitals and physician group practices for uncompensated charity care.
  - 1.0.2 In Addition Re:
    - 1.0.2.1 Criminal History Requirements for Child Care Operations
2 Texas Department of Licensing and Regulation
- - 2.0.1 Proposed Rules Re:
  - 2.0.2 Adopted Rules Re:
    - 2.0.2.1 Amending 16 TAC §114.29 to modify inspection requirements for orthotists and prosthetists.
3 Texas Department of State Health Services
- - 3.0.1 In Addition Re:
    - 3.0.1.1 Certification Limited Liability Report
    - 3.0.1.2 Designation of a Practice Serving a Medically Underserved Population

Texas Health and Human Services Commission

Adopted Rules Re:

Amending 1 TAC §355.8212, §355.8214, concerning waiver payments to hospitals and physician group practices for uncompensated charity care.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
1 TAC §355.8212, §355.8214

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.8212, concerning Waiver Payments to Hospitals for Uncompensated Charity Care, and §355.8214, concerning Waiver Payments to Physician Group Practices for Uncompensated Charity Care.

The amendments to §355.8212 and §355.8214 are adopted without changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5539). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The Uncompensated Care (UC) payments are made by HHSC to qualifying providers that serve a large number of Medicaid and uninsured individuals. Attachment H of the 1115 Waiver establishes rules and guidelines for the State to claim federal matching funds for UC payments to hospitals, clinics, and other provider types. The purpose of Texas Physician Uncompensated Care (TXPUC) is to determine the physician professional costs related to services provided to charity care patients by physician organizations that may be reimbursable from the Uncompensated Care pool. The amended rules define and update certain TXPUC provider classes and makes other clarifying amendments.

These amended rules update the definition and the methodology used to allocate funds to physician groups. The prior rules do not define the different classes of physician groups and allocates funds equally. The amended rules add “State-owned” and “Non-State-owned” physician group classes and allow the application of different allocation methodologies to each newly defined class. “State-owned” physician groups will now have a different allocation methodology of funds while the “Non-State-owned” physician groups’ methodology remains unchanged. Minor grammatical and formatting edits were made to the rule text.

In Addition Re:

Criminal History Requirements for Child Care Operations

OVERVIEW

(Editor’s note: In accordance with Texas Government Code, §2002.014, which permits the omission of material that is “cumbersome, expensive, or otherwise inexpedient,” the charts are not included in the print version of the Texas Register. The charts are available in the online HTML version of the January 6, 2023, issue of the Texas Register.)

26 Texas Administrative Code §745.661 (relating to: What types of criminal convictions may affect a subject’s ability to be present at an operation?) states that HHSC will review the three charts listed in subsection (a) of the section annually and publish any changes in January 2023 for public comment in the as an “In Addition” document. Questions or comments about the content of the proposed changes may be directed to Child Care Regulation at (512) 438-3269.

Texas Department of Licensing and Regulation

Proposed Rules Re:

New 16 TAC §§121.23, 121.24, 121.26, 121.50, 121.70, 121.80, and new 16 TAC §§121.26, 121.70, and 121.80, regarding educational requirements.

CHAPTER 121. BEHAVIOR ANALYST
16 TAC §§121.23, 121.24, 121.26, 121.50, 121.70, 121.80

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 TAC, Chapter 121, Subchapter A, §121.10; Subchapter B, §§121.20 – 121.22, 121.27, and 121.30; Subchapter D, §121.71 and §121.75; and Subchapter G, §121.90 and §121.95; new rules at 16 Texas Administrative Code (TAC), Chapter 121, Subchapter B, §121.26; Subchapter D, §§121.70, 121.72 – 121.74; Subchapter E, §§121.76 – 121.81; and Subchapter F, §121.85; and the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 121, §§121.23, 121.24, 121.26, 121.50, 121.70, and 121.80 regarding the Behavior Analyst program; and the addition of subchapter titles to an existing chapter. These proposed changes are referred to as “proposed rules.”

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC, Chapter 121, implement Texas Occupations Code, Chapter 506.

The proposed rules implement changes from the internal four-year rule review. The proposed rules are necessary to provide guidelines to health professionals for the use of telehealth, update rule provisions to reflect current Department procedures, restructure the existing rules for better organization, and amend outdated rule language.

Advisory Board Recommendations

The proposed rules were presented to and discussed by the Behavior Analyst Advisory Board at its meeting on December 1, 2022. The Advisory Board did not make any changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules repeal §121.23, Examinations, as the text is being relocated to the proposed §121.20 discussed above.
The proposed rules repeal §121.24, Educational Requirements, as the text is being relocated to the proposed §§121.21-121.22.
The proposed rules repeal §121.26, Renewal, as the text is being reproposed due to extensive changes outlined below.
The proposed rules add new §121.26, Renewal, by clarifying the requirements for renewal, including term of license, and removes the provision which prevents the department from renewing the license of a person who is in violation of rules or law at the time of renewal and amending outdated rule language.
The proposed rules repeal §121.50, Reporting Requirements, as the text is being relocated to the proposed §121.74, Reporting Requirements.
The proposed rules repeal §121.70, Administrative Practice Responsibilities of License Holders, as the text is being reproposed due to extensive changes outlined below.
The proposed rules add new §121.70, Administrative Practice Responsibilities of License Holders, which remove duplicative provisions included in §121.95; moves license display requirements to new §121.72; moves recordkeeping requirements to §121.73; and moves telehealth requirements to Subchapter E, Telehealth.
The proposed rules add new §121.80, Use of Facilitators with Telehealth, which relocates requirements regarding facilitators for telehealth from §121.71.
The proposed rules repeal §121.80, Fees, which has been relocated to new Subchapter F, discussed below.

Amending 16 TAC §121.10, removing terms that have been moved to other sections.

CHAPTER 121. BEHAVIOR ANALYST
SUBCHAPTER A. GENERAL PROVISIONS
16 TAC §121.10

OVERVIEW

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC, Chapter 121, implement Texas Occupations Code, Chapter 506.

Advisory Board Recommendations

SECTION-BY-SECTION SUMMARY

The proposed rules create new Subchapter A, General Provisions.
The proposed rules amend §121.10, Definitions. The proposed rules remove references to supervision which have been moved to §121.76, Supervision; references to telehealth, which have been moved to Subchapter E, Telehealth; clarifies terms and removes definitions that are not used throughout the chapter.

Amending 16 TAC §§121.20 – 121.22, 121.26, 121.27, 121.30, which creates a new subsection regarding educational requirements.

CHAPTER 121. BEHAVIOR ANALYST
SUBCHAPTER B. LICENSING REQUIREMENTS
16 TAC §§121.20 – 121.22, 121.26, 121.27, 121.30

OVERVIEW

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC, Chapter 121, implement Texas Occupations Code, Chapter 506.

Advisory Board Recommendations

SECTION-BY-SECTION SUMMARY

The proposed rules create new Subchapter B, Licensing Requirements.
The proposed rules amend §121.20, Applications, which includes provisions from §121.23, Examinations, which was repealed and relocated into this section, and amends outdated rule language.
The proposed rules amend §121.21, Behavior Analyst Licensing Requirements, which includes provisions from §121.24, Educational Requirements, which was repealed and relocated into this section, and amends outdated rule language.
The proposed rules amend §121.22, Assistant Behavior Analyst Licensing Requirements, which includes provisions from §121.24, Educational Requirements, which was repealed and relocated into this section, and amend outdated rule language.
The proposed rules amend §121.27, Inactive Status, update language to clarify that there is no fee to move from an active to inactive license status.
The proposed rules amend §121.30, Exemptions, to align the rule with statutory provisions.

New 16 TAC §§121.70 – 121.75, regarding practice responsibilities.

CHAPTER 121. BEHAVIOR ANALYST
SUBCHAPTER D. RESPONSIBILITIES OF LICENSE HOLDERS
16 TAC §§121.70 – 121.75

OVERVIEW

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC, Chapter 121, implement Texas Occupations Code, Chapter 506.

Advisory Board Recommendations

SECTION-BY-SECTION SUMMARY

The proposed rules create new Subchapter D, Responsibilities of License Holders.
The proposed rules amend §121.71, Professional Services Practice Responsibilities of License Holders, which clarify the definition and function of a treatment plan; and moves telehealth requirements to Subchapter E, Telehealth.
The proposed rules add new §121.72, Display of License, which relocates license display provisions and limitations related to the photocopy and reproduction of a license from §121.70, as discussed above.
The proposed rules add new §121.73, Recordkeeping Requirements, which relocates requirements from §121.70, and clarifies who owns and is responsible for maintaining patient records.
The proposed rules add new §121.74, Reporting Requirements, which relocates requirements from §121.74 without changes, which was repealed as discussed above.
The proposed rules amend §121.75, Code of Ethics, which includes amendments to outdated rule language.

New 16 TAC §§121.76 – 121.81, concerning the requirements for telehealth.

CHAPTER 121. BEHAVIOR ANALYST
SUBCHAPTER E. TELEHEALTH
16 TAC §§121.76 – 121.81

OVERVIEW

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC, Chapter 121, implement Texas Occupations Code, Chapter 506.

Advisory Board Recommendations

SECTION-BY-SECTION SUMMARY

The proposed rules create new Subchapter E, Telehealth.
The proposed rules add new §121.76, Definitions Relating to Telehealth, which relocates definitions related to telehealth and aligns them with other department health programs.
The proposed rules add new §121.77, Service Delivery Methods, which relocates delivery methods defined in §121.10 and §121.70 and aligns them with other department health programs.
The proposed rules add new §121.78, Technology and Equipment Requirements, which relocates telecommunications requirements related to equipment and competencies from §§121.70-121.71.
The proposed rules add new §121.79, License Holder Responsibilities for Providing Telehealth Services and Using Telehealth, which relocates responsibilities for providers from §§121.70-121.71 and aligns them with other department health programs.
The proposed rules add new §121.81, Client Contacts and Communications, which relocates requirements regarding required notifications to clients and complaint information from §121.70.

Amending 16 TAC §121.90, §121.95, concerning complaints and disciplinary action.

CHAPTER 121. BEHAVIOR ANALYST
SUBCHAPTER G. ENFORCEMENT
16 TAC §121.90, §121.95

OVERVIEW

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC, Chapter 121, implement Texas Occupations Code, Chapter 506.

Advisory Board Recommendations

SECTION-BY-SECTION SUMMARY

The proposed rules create new Subchapter G, Enforcement.
The proposed rules amend §121.90, Basis for Disciplinary Action, to provide more concise language related to which disciplinary actions can be taken against a license holder.
The proposed rules amend §121.95, Complaints, adds a requirement to include a parent or authorized representative in the complaint process and amends outdated rule language.

Adopted Rules Re:

Amending 16 TAC §114.29 to modify inspection requirements for orthotists and prosthetists.

CHAPTER 114. ORTHOTISTS AND PROSTHETISTS
16 TAC §114.29

OVERVIEW

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 114, §114.29, regarding the Orthotists and Prosthetists program, without changes to the proposed text as published in the October 14, 2022, issue of the Texas Register (47 TexReg 6742). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC, Chapter 114, implement Texas Occupations Code, Chapter 605, Orthotists and Prosthetists.

House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Department, added new inspection provisions to Occupations Code, Chapter 51, the Department’s enabling statute (see HB 1560, Article 1, Section 1.05). HB 1560 added new §51.211 to Chapter 51, requiring the department to conduct risk-based inspections that prioritize inspections based on key risk factors. HB 1560 also repealed provisions from several program statutes that conflicted with this new provision.

The adopted rules remove periodic inspections from the Orthotists and Prosthetists program rules and are necessary to implement Texas Occupations Code §51.211.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §114.29(h) to remove periodic inspection requirements and to add language stating that facilities will be inspected in accordance with Chapter 51, Occupations Code, and new rules governing inspections within 16 TAC, Chapter 60, Subchapter H. The adopted rules also repeal former subsections (h)(1) through (h)(6) of §114.29, as that subject matter will be covered by the inspections rules contained in Chapter 60, Subchapter H.
The adopted rules also change the title of §114.29 to “Accreditation and Inspection of Facilities” (emphasis added).
The new rules regarding inspections under Chapter 60, Subchapter H, are also currently being adopted separately in this issue of the Texas Register. Those adopted rules provide, among other things, that: (1) the department may perform inspections with or without advance notice to ensure compliance with statute or rule, or as a result of a complaint; (2) inspections will be performed during the regular operating hours of the location being inspected; (3) upon completion of an inspection, the license holder, applicant, or representative will be provided with the results of the inspection in writing; (4) the department may use alternative inspection methods, including the use of videoconference technology, instead of conducting an in-person inspection; and (5) a license holder, applicant, or other person must cooperate in the performance of an inspection.

Texas Department of State Health Services

In Addition Re:

Certification Limited Liability Report

The Hospital Survey Program in the Center for Health Statistics, Texas Department of State Health Services, has completed its analysis of hospital data for the purpose of certifying nonprofit hospitals or hospital systems for limited liability under Texas Health and Safety Code, §311.0456. Thirty hospitals requested certification. Each of the requesting hospitals will be notified, by mail, on the determination of whether the statutory certification requirements were met. The certification issued under Texas Health and Safety Code §311.0456 to a nonprofit hospital or hospital system takes effect on December 31, 2022, and expires on the anniversary of that date.

Designation of a Practice Serving a Medically Underserved Population

The Texas Department of State Health Services (Department) is required under Texas Occupations Code §157.051 to designate practices serving a medically underserved population. In addition, the Department is required to publish notice of such designations in the Texas Register and to provide an opportunity for public comment on the designations.

Accordingly, the Department has proposed designating the following as practices serving medically underserved populations:

MD Kids Pediatrics, 9708 Business Parkway, Suite 118, Helotes, Texas 78023;

MD Kids Pediatrics, 7939 Pat Booker Road, Suite 130, Live Oak, Texas 78233;

MD Kids Pediatrics, 2188 West State Highway 46, Suite 105, New Braunfels, Texas 78132; and

MD Kids Pediatrics, 1227 Enrique M. Barrera Parkway, San Antonio, Texas 78227.