Texas Register July 21, 2023 Volume: 48 Number: 29

Texas Register Table of Contents

1 Texas Health and Human Services Commission

Texas Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §600.1, to permit a qualified rural hospital designated as a rural emergency hospital by CMS to apply for licensure as a limited services rural hospital.

CHAPTER 600. LIMITED SERVICES RURAL HOSPITALS
26 TAC §600.1

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 600, Limited Services Rural Hospitals, new §600.1, concerning an emergency rule to permit qualified rural hospitals to apply for licensure as a limited services rural hospital.

This emergency rule is proposed under and implements Texas Health and Safety Code Chapter 241, Subchapter K, which allows a qualified rural hospital that is designated as rural emergency hospital by the Centers for Medicare and Medicaid Services (CMS) to become licensed as a limited services rural hospital and remain open to treat patients.

To protect individuals living in rural areas and the public health, safety, and welfare of the state, HHSC is adopting this emergency rule to permit a qualified rural hospital to become licensed as a limited services rural hospital under Texas Health and Safety Code Chapter 241, Subchapter K.

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 implement Senate Bill 1621, 86th Legislature, Regular Session, 2019, which the Legislature enacted to ensure individuals living in rural areas continue to have access to hospital care, in response to the closure of rural hospitals. HHSC accordingly finds that this threat to access to hospital care constitutes an imminent peril to the public health, safety, and welfare of the state that requires immediate adoption of this emergency rule for limited services rural hospitals.

Senate Bill 1621 added Texas Health and Safety Code Chapter 241, Subchapter K, which, in part, requires HHSC to adopt licensing standards for limited services rural hospitals if the United States Congress passes a bill creating a payment program specifically for limited services rural hospitals or similarly designated hospitals that becomes law. The Consolidated Appropriations Act, 2021, became law on December 27, 2020, and required CMS to establish a federal rural emergency hospital designation. The CMS conditions of participation for rural emergency hospitals took effect January 1, 2023.

The requirements and flexibilities established in this section are applicable while this emergency rule is in effect pursuant to Texas Government Code §2001.034 (relating to Emergency Rulemaking) and Texas Government Code §531.0055 (relating to Executive Commissioner: General Responsibility for Health and Human Services System, respectively).

Proposed Rules Re:

Amending 1 TAC §§354.1111, 354.1113, 354.1115, to provide information regarding Medicaid-enrolled ambulances providing medically necessary care or facilitating the appropriate treatment.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
1 TAC §§354.1111, 354.1113, 354.1115

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1111, concerning Definitions; §354.1113, concerning Additional Claim Information Requirements; and §354.1115, concerning Authorized Ambulance Services.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement legislation related to ambulance services as directed by Senate Bill 1, Article II, Rider 42, 87th Legislature, Regular Session, 2021. The proposed amendments implement emergency triage, treat, and transport (ET3) services to allow Medicaid-enrolled ambulance providers to address health care needs assessed as non-emergency, but medically necessary, by providing appropriate treatment in place at the scene; facilitating appropriate treatment in place via telemedicine or telehealth; and transporting a Medicaid recipient to an alternative non-hospital destination, such as a primary care physician office or an urgent care clinic. Rider 42 directs HHSC to implement an ET3 program for Texas Medicaid. The proposal allows ET3 services similar to those put in place with the Centers for Medicare & Medicaid Services’ ET3 Pilot project. The proposed amendments also update and clarify language in the rules.

The proposed amendment to §354.1111 defines the term “emergency triage, treat, and transport (ET3) services” as emergency ground ambulance services that transport Medicaid recipients to alternative destination sites other than emergency departments (EDs), including primary care physician offices, urgent care clinics; providing appropriate treatment in place at the scene; or facilitating appropriate treatment in place via telemedicine or telehealth. The proposed amendment makes a change to the definition of “nonemergency transport” to clarify that it is appropriate when a Medicaid recipient’s medical condition is such that the use of an ambulance is medically required and alternate means of transport are medically contraindicated. The proposed amendment also replaces the term “commission” with “HHSC.” This is based on an HHSC initiative to consistently define HHSC throughout rules.

The proposed amendment to §354.1113 adds claim documentation requirements to be reimbursed for ET3 services for transport to an alternative destination site, treatment in place at the scene, or treatment in place via telemedicine or telehealth, if applicable. The proposed amendment establishes that a prior authorization number must be obtained for nonemergency ambulance transports. The proposed amendment to §354.1113 also removes the requirement that the prior authorization number must be obtained before an ambulance is used, to be consistent with the authorization requirements in §354.1115 that implemented Texas Human Resources Code §32.024(t) in a previous rule amendment.

The proposed amendment to §354.1115 adds criteria for reimbursement of ET3 services when a Medicaid-enrolled ambulance provider responds to a call initiated by an emergency response system and determines the recipient’s needs are non-emergent, but medically necessary, to be reimbursed for transport to an alternative destination, providing treatment in place, or facilitating treatment in place via telemedicine or telehealth.

Amending 1 TAC §355.105, to include new definitions and corrections and to align SSCC’s cost reporting period with the State of Texas’s fiscal year.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER A. COST DETERMINATION PROCESS
1 TAC §355.105

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.105, concerning General Reporting and Documentation Requirements, Methods, and Procedures.

BACKGROUND AND JUSTIFICATION

Texas Human Resources Code §40.058 requires the Texas Department of Family and Protective Services (DFPS) and HHSC to “enter into contracts for the provision of shared administrative services, including…rate setting.” As part of these rate-setting activities, HHSC collects annual cost reports from program providers in the 24-Hour Residential Child Care (24RCC) program and uses the data to calculate and recommend payment rates to DFPS. DFPS currently reimburses providers through two payment models: the legacy system and Community-Based Care (CBC). Under the legacy system, DFPS pays 24RCC providers a payment rate for each day of care provided. Under CBC, DFPS contracts with a Single Source Continuum Contractor (SSCC) who is responsible for finding foster homes or other living arrangements for children in state care and providing them with a full continuum of services. SSCCs subcontract with residential childcare providers to provide residential foster care in their catchment areas.

The Texas Legislature directed DFPS to implement foster care rate modernization within the Issue Docket Decisions of the 2024-2025 General Appropriations Bill, House Bill 1, 88th Legislature, Regular Session, 2023 (Article II – Health and Human Services). Cost Report modifications have been outlined in HHSC’s legislative reports pertaining to the Foster Care Rate Modernization project. For example, HHSC’s Pro Forma Modeled Rate and Fiscal Impact Report, as required by the 2022-2023 General Appropriations Act, Senate Bill 1, 87th Legislature, Regular Session, 2021 (Article II Special Provisions Relating to All Health and Human Services Agencies, Section 26), stated: “HHSC and DFPS must evaluate if calculating a statewide case management rate using actual SSCC cost data in lieu of resource transfer is appropriate. Using SSCC costs to calculate the CBC rate may improve the state’s ability to align rates more closely to provider costs. HHSC and DFPS would have to evaluate if a cost-based approach is appropriate for CBC. A cost-based approach could result in DFPS paying provider-specific, per-catchment rates or a uniform statewide rate.” The cost-based approach was also outlined in HHSC’s Implementation Plan.

The purpose of the proposal is to update the cost report excusal criteria for DFPS’ 24RCC program to ensure program providers have sufficient data to justify collecting an annual cost report. The proposed amendment updates the excusal criteria to account for providers who have subcontracted with an SSCC under CBC by adding SSCC referrals into the calculation of state-placed days.

The proposed amendment would also require all SSCCs to submit cost reports on the state fiscal year rather than the provider’s current fiscal year. This amendment would allow additional time for claims adjudication before cost reports are submitted to improve data reliability and reduce adjustments during HHSC’s financial examination processes. The amendments also make clarifying edits throughout the rule.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.105(b)(4)(D)(viii) removes the excusal criteria for providing only basic level services and adds SSCC-placed days to the definition of state-placed days for the purposes of 24RCC program cost report excusal criteria.
The proposed amendment to §355.105(b)(5) requires that the SSCC’s cost reporting period coincides with the State of Texas’s fiscal year.
The proposed amendment to §355.105 includes reference corrections and edits to improve readability and understanding.

Repealing 1 TAC §355.727, to coincide with the expiration of temporary add-ons, which expire on August 31, 2023.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER F. REIMBURSEMENT METHODOLOGY FOR PROGRAMS SERVING PERSONS WITH MENTAL ILLNESS OR INTELLECTUAL OR DEVELOPMENTAL DISABILITY
1 TAC §355.727

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §355.727, concerning Add-on Payment Methodology for Home and Community-Based Services Supervised Living and Residential Support Services.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to repeal §355.727, concerning Add-on Payment Methodology for Home and Community-Based Services Supervised Living and Residential Support Services. The temporary add-ons expire on August 31, 2023. Funding associated with the add-ons will be incorporated into the base rates for supervised living and residential support services in the Home and Community-Based Services (HCS) waiver program.

Amending 1 TAC §355.9080, to no longer require that the payment rate not exceed 70 percent of the average hourly Private Duty Nursing rate under the THSteps Program.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER M. MISCELLANEOUS PROGRAMS
1 TAC §355.9080

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.9080, concerning Reimbursement Methodology for Prescribed Pediatric Extended Care Centers.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to remove the requirement that the payment rate for Prescribed Pediatric Extended Care Centers (PPECC) cannot be more than 70 percent of the average hourly Private Duty Nursing rate under the Texas Health Steps (THSteps) Program. The proposed amendment would implement a rate methodology change for PPECC reimbursement approved through HHSC’s biennial fee review process and would enable PPECC rate methodology to reflect allowable provider costs.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.9080(a) removes the requirement that the payment rate cannot be more than 70 percent of the average hourly Private Duty Nursing rate under the THSteps Program.

Adopted Rules Re:

New 1 TAC §355.8707, to specify the content of required notifications of the creation of LPPFs.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER L. LOCAL FUNDS MONITORING
1 TAC §355.8707

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §355.8707, concerning Notification Requirements for the Creation of a Local Provider Participation Fund (LPPF).

HHSC adopts new §355.8707 with changes to the proposed text as published in the March 31, 2023, issue of the Texas Register (48 TexReg 1683). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The new rule implements the requirements of House Bill 4289, 86th Legislature, Regular Session, 2019, by establishing a process that requires certain political subdivisions to notify HHSC of the creation of a new LPPF as authorized by Texas Health and Safety Code Chapter 300 or Texas Health and Safety Code Chapter 300A. This rule will ensure that HHSC receives appropriate and timely notice of newly created LPPFs, enabling the agency to maintain oversight and reduce the risk of federal recoupment.

This new rule is also necessary to comply with the requirements of 42 C.F.R. §433.51 (Public Funds as the State share of financial participation), 42 C.F.R. §433.68 (Permissible health care-related taxes), 42 C.F.R. §433.74 (Reporting requirements), and Sections 1903(w)(1)(A)(i)-(iii) of the Social Security Act.

New 26 TAC §745.43, to outline the requirements for a relative-only listed family home.

CHAPTER 745. LICENSING
SUBCHAPTER B. CHILD CARE AND OTHER OPERATIONS THAT WE REGULATE
26 TAC §745.43

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC), Title 26, Chapter 745, Subchapter B, Child Care and Other Operations that We Regulate, new §745.43; new Subchapter I, Non-Enforcement Voluntary Actions, new §§745.5001, 745.5003, 745.5051, 745.5101, 745.5103, 745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161, and 745.5201; new Subchapter K, Inspections, Investigations, and Confidentiality, and new §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, 745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, 745.8581, 745.8583, and 745.8585.

New §§745.5101, 745.8405, 745.8487, and 745.8493 are adopted with changes to the proposed text as published in the March 17, 2023, issue of the Texas Register (48 TexReg 1518). These rules will be republished.

New §§745.43, 745.5001, 745.5003, 745.5051, 745.5103, 745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161, 745.5201; 745.8401, 745.8403, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, 745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8481, 745.8483, 745.8485, 745.8489, 745.8491, 745.8581, 745.8583, and 745.8585 are adopted without changes to the proposed text as published in the March 17, 2023, issue of the Texas Register (48 TexReg 1518). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The new sections are necessary to finalize the rule compliance requirements for 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) and the health and human services 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 had to be transferred from DFPS to HHSC. In 2019, CCR 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 since some of the rules also applied to responsibilities that remained with DFPS. In March 2023, CCR repealed Title 40, Chapter 745, Subchapter M, Administrative Reviews and Due Process Hearings, and adopted new rules in Title 26, Chapter 745, Subchapter M, Administrative Reviews and Due Process Hearings.

DFPS has also adopted rules applicable to DFPS responsibilities in Title 40, Chapter 707. In addition, CCR is adopting a new rule in Title 26, Chapter 745, Subchapter B, Child Care and Other Operations that We Regulate, and new rules in new Subchapter I, Non-Enforcement Voluntary Actions, and new Subchapter K, Inspections, Investigations, and Confidentiality, all applicable to CCR responsibilities. The repeal of Title 40, Chapter 745, Subchapter K, Inspections and Investigations, is being adopted elsewhere in this issue of the Texas Register.

In addition to replacing the content of the Title 40, Chapter 745, Subchapter K rules with new rules in Title 26, Chapter 745, Subchapters, B, I, and K, the changes in the adopted rules (1) remove any duties directly related to any DFPS responsibilities, including the investigation of child abuse, neglect, and exploitation, as DFPS has rules to address those responsibilities; (2) update the rules with current practices; and (3) update the rules for better readability and understanding.

New 26 TAC §745.5001 and §745.5003, to describe voluntary actions and the outcome of voluntary actions.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §745.5001, §745.5003

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §745.5051, to address when notice and approval by CCR are required before an operation may take a voluntary action.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §745.5051

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §745.5101, §745.5103, describing the process for temporary relocations and subsequent inspections.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §745.5101, §745.5103

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §§745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161, to explain the voluntary suspension of a permit and the the process for a voluntary suspension.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §§745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §745.5201, to explain the process for voluntarily closing an operation.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §745.5201

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, to address the inspection and investigation protocols.

CHAPTER 745. LICENSING
SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY
26 TAC §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §§745.8441, 745.8443, 745.8445, 745.8447, 749.8449, to describe unannounced inspections or investigations and notification of the inspection or investigations outcomes.

CHAPTER 745. LICENSING
SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY
26 TAC §§745.8441, 745.8443, 745.8445, 745.8447, 749.8449

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §§745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, to give notice of required childcare records.

CHAPTER 745. LICENSING
SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY
26 TAC §§745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §§745.8581, 745.8583, 745.8585, to describe the technical assistance provided by CCR.

CHAPTER 745. LICENSING
SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY
26 TAC §§745.8581, 745.8583, 745.8585

OVERVIEW

BACKGROUND AND JUSTIFICATION

In Addition Re:

Public Notice – Amendment of the Texas Healthcare Transformation and Quality Improvement Program (THTQIP) Waiver

OVERVIEW

In response to the public health emergency (PHE) resulting from COVID-19 which ended in May 2023, the Texas Health and Human Services Commission (HHSC) submitted a request to the Centers for Medicare & Medicaid Services (CMS) for an amendment to the Texas Healthcare Transformation and Quality Improvement Program (THTQIP) waiver administered under section 1115 of the Social Security Act. The request was submitted on April 5, 2023, through an Appendix K. HHSC submitted the amendment to comply with federal documentation requirements and close out remaining flexibilities implemented during the PHE. The proposed effective date for this amendment is March 13, 2020. The proposed end date is August 31, 2023.

HHSC requested approval to implement retroactively the following changes to the THTQIP Special Term and Condition (STC) 28 (b)(i)(1), Interest List for STAR+PLUS 217-Like Home and Community-Based Services (HCBS) Group.

Public Notice – Texas State Plan for Medical Assistance Amendment

OVERVIEW

The 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 will be effective September 1, 2023.

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:

Ambulance Services;

Early and Periodic Screening, Diagnosis, and Treatment Services (EPSDT);

Home Health Services; and

Physicians and Other Practitioners.