Texas Register July 23, 2021 Volume: 46 Number: 30

Texas Register Table of Contents

1 Texas Medical Board
- - 1.0.1 Emergency Rules Re:
    - 1.0.1.1 Amending 22 TAC §187.2 and §187.6 to ensure consistent usage of the term “appear” and “appearance” with regard to general provisions and definitions.
    - 1.0.1.2 Amending 22 TAC §187.16 to providing consistency of the terms “appear” and “appearance” with regard to informal board proceedings.
  - 1.0.2 Proposed Rules Re:
    - 1.0.2.1 Amending 22 TAC §187.2 and §187.6 to incorporate consistent usage of the term “appear” and “appearance” for general procedural rules.
    - 1.0.2.2 Amending 22 TAC §187.16 to ensure consistent usage of the term “appear” and “appearance” with regard to informal board proceedings.
2 Health and Human Services Commission
- - 2.0.1 Emergency Rules Re:
  - 2.0.2 Proposed Rules Re:
    - 2.0.2.1 New 26 TAC §261.220, formalizing the current process for Medicaid bed reallocation authorized by the Long-Term Care Plan for Individuals with Intellectual Disabilities and Related Conditions.
3 Department of Aging and Disability Services
- - 3.0.1 Emergency Rules Re:
    - 3.0.1.1 Amending 40 TAC §30.14 to allow for the determination of an individual’s continued eligibility for hospice care through a telemedicine medical service.
4 Department of State Health Services
- - 4.0.1 In Addition Re:
    - 4.0.1.1 Amendment Extending the Temporary Schedule I Status of Five Synthetic Substances; Removing Samidorphan from Schedule II; Placing Fourteen Fentanyl Related Substances into Schedule I; and Placing Serdexmethylphenidate in Schedule IV.

Texas Medical Board

Emergency Rules Re:

Amending 22 TAC §187.2 and §187.6 to ensure consistent usage of the term “appear” and “appearance” with regard to general provisions and definitions.

CHAPTER 187. PROCEDURAL RULES
SUBCHAPTER A. GENERAL PROVISIONS AND DEFINITIONS
22 TAC §187.2, §187.6

OVERVIEW

The Texas Medical Board (Board) adopts, on an emergency basis, amendments to 22 TAC §§187.2(6), 187.6 and 187.16, relating to Definitions, Appearances Personally or by Representative, and Informal Show Compliance (ISC) Information and Notices, respectively, effective immediately upon filing.

The emergency amendment to §187.2(6) adds a definition of “appear/appearance.” The amendments to §187.6 and §187.16 are conforming amendments to incorporate consistent usage of the term “appear” and “appearance.”

BACKGROUND AND JUSTIFICATION

The emergency amendment is necessary to facilitate safe continuity of operations of the Texas Medical Board with respect to resolution of complaint investigations. These complaint investigations and disciplinary process comprise essential functions of the Board. The emergency amendment will provide the Board with the ability to continue to perform this essential function while maintaining maximum safety measures mitigating against the spread of COVID-19.

Pursuant to §2001.034 and §2001.036(a)(2) of the Texas Government Code, the emergency amendment is adopted on an emergency basis and with an expedited effective date because an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. The emergency amendment will eliminate potential unnecessary exposure to COVID-19 for agency staff, gubernatorial appointees (including physicians and other health professionals), complainants (including patients and/or family members), licensees, and their representatives when addressing complaints through Informal Show Compliance Proceedings and Settlement Conferences (ISC).

The emergency rules provide a means of providing maximum safety measures (virtually eliminating potential exposure) when conducting statutorily required ISCs regarding alleged violations of the Medical Practice Act and other applicable laws. In addition, the rules eliminate unnecessary expenditure of state funds and have proven to be an efficient manner of conducting these proceedings for all parties involved. The rules also provide adequate means for licensees and their representatives to respond to and address alleged violations of laws regarding the practice of medicine through the statutory ISC process.

Amending 22 TAC §187.16 to providing consistency of the terms “appear” and “appearance” with regard to informal board proceedings.

CHAPTER 187. PROCEDURAL RULES
SUBCHAPTER B. INFORMAL BOARD PROCEEDINGS
22 TAC §187.16

OVERVIEW

The amendments to §187.6 and §187.16 are conforming amendments to incorporate consistent usage of the term “appear” and “appearance.”

BACKGROUND AND JUSTIFICATION

Proposed Rules Re:

Amending 22 TAC §187.2 and §187.6 to incorporate consistent usage of the term “appear” and “appearance” for general procedural rules.

CHAPTER 187. PROCEDURAL RULES
SUBCHAPTER A. GENERAL PROVISIONS AND DEFINITIONS
22 TAC §187.2, §187.6

OVERVIEW

The Texas Medical Board (Board) proposes amendments to 22 TAC §§187.2(6), 187.6 and 187.16, relating to Definitions, Appearances Personally or by Representative, and Informal Show Compliance (ISC) Information and Notices, respectively, effective immediately upon filing.

The amendments to §187.2(6) adds a definition of “appear/appearance.” The amendments to §187.6 and §187.16 are conforming amendments to incorporate consistent usage of the term “appear” and “appearance.”

BACKGROUND AND JUSTIFICATION

The amendments are proposed under the authority of Texas Occupations Code §§153.001, which provides authority for the Board to adopt rules necessary to administer and enforce the Medical Practice Act and to adopt rules necessary to regulate and license physicians.

Amending 22 TAC §187.16 to ensure consistent usage of the term “appear” and “appearance” with regard to informal board proceedings.

CHAPTER 187. PROCEDURAL RULES
SUBCHAPTER B. INFORMAL BOARD PROCEEDINGS
22 TAC §187.16

OVERVIEW

BACKGROUND AND JUSTIFICATION

Health and Human Services Commission

Emergency Rules Re:

Renewing 26 TAC §500.1 to allow currently licensed hospitals to operate certain off-site inpatient facilities without obtaining a new license.

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 April 2, 2021, issue of the Texas Register (46 Tex Reg 2117).

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis new §500.1, Hospital Off-Site Facilities in Response to COVID-19, in Title 26, Texas Administrative Code, Chapter 500, concerning an emergency rule to allow hospitals to treat and house patients more effectively in response to COVID-19.

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.

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.

New 26 TAC §553.2004, requiring assisted living facilities to track COVID-19 vaccinations of staff and residents.

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 or Commission) 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, the Commission 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, requiring nursing facilities to accurately track and report COVID-19 vaccination data for staff and residents.

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 Government Code, §2001.034, the Commission 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 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.

Amending 26 TAC §745.115 to exempt from licensure and regulation by the HHSC programs that provides care exclusively to unlawfully present individuals.

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, 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 in §745.10301 provides that child-care programs that are exempt from licensure and regulation by HHSC must be operated 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

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 comply 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 §§42.046 and 42.048 of the Texas Human Resources Code and all other relevant laws to the extent necessary for HHSC to comply with this direction. Based on the disaster declaration, HHSC finds that the imminent peril to the public health, safety, and welfare of the state requires immediate adoption of these emergency rules concerning child-care facility licensing.

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

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

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 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.

BACKGROUND AND JUSTIFICATION

Proposed Rules Re:

New 26 TAC §261.220, formalizing the current process for Medicaid bed reallocation authorized by the Long-Term Care Plan for Individuals with Intellectual Disabilities and Related Conditions.

CHAPTER 261. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS (ICF/IID) PROGRAM–CONTRACTING
SUBCHAPTER C. PROVIDER ADMINISTRATIVE REQUIREMENTS
26 TAC §261.220

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §261.220, concerning Medicaid Bed Reallocation.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement House Bill (H.B.) 3117, 86th Legislature, Regular Session, 2019, which requires HHSC to develop a process to redistribute existing intermediate care facilities for individuals with an intellectual disability or related conditions (ICF/IID) Medicaid beds under the authority of the State Plan for Individuals with Intellectual and Developmental Disabilities.

Adding a new section to Texas Administrative Code, Title 26, Chapter 261 will enable HHSC to reallocate available beds reverted to HHSC due to provider closure or expiration of beds in suspension. With the addition of new §261.220, ICF/IID providers can apply to HHSC to request up to a maximum of six additional beds.

SECTION-BY-SECTION SUMMARY

Proposed new §261.220, Medicaid Bed Reallocation, formalizes the current process for Medicaid bed reallocation authorized by the Long-Term Care Plan for Individuals with Intellectual Disabilities and Related Conditions, based on the Texas Health and Safety Code §533A.062 (b-1), relating to Plan on Long-Term Care for Persons with an Intellectual Disability.

Subsection (a) of the rule contains the requirements from H.B. 3117, for HHSC to review state-wide bed capacity of community ICF/IIDs and develop a process to reallocate beds held in suspension.
Subsection (b) states that an ICF/IID may not increase its Medicaid bed capacity unless HHSC approves.
Subsection (c) indicates, notwithstanding §261.206 (relating to Application Process) that the process for Medicaid bed reallocation is established in the provisions following Subsection (c).
Subsection (d) establishes the process for an applicant, which includes a current provider or a new provider, to follow if the applicant wants to request reallocated Medicaid beds.
Subsection (e) sets forth the way HHSC calculates the number of beds made available.
Subsection (f) contains the process HHSC follows on receiving a request for reallocated Medicaid beds.
Subsection (g) includes what an applicant must provide to show a need for requested reallocated beds.
Subsection (h) contains what regulatory compliance history HHSC reviews to determine if it is acceptable.
Subsection (i) indicates that an applicant having no compliance history must meet all other criteria for reallocation.
Subsection (j) states that HHSC approves an application for reallocated beds if ICF/IID beds are available, the applicant meets all criteria for reallocation, and HHSC sends an approval letter.
Subsection (k) contains the steps an applicant must complete after approval for reallocation.
Subsection (l) states what happens if an applicant fails to complete the required steps after receiving approval for reallocation.
Subsection (m) states what occurs if HHSC denies a license application or the applicant does not complete provider enrollment or Medicaid contracting.
Subsection (n) explains what occurs if HHSC revokes the reallocation of beds.
Subsection (o) explains the process HHSC follows when HHSC reallocates all beds available.

Department of Aging and Disability Services

Emergency Rules Re:

Amending 40 TAC §30.14 to allow for the determination of an individual’s continued eligibility for hospice care through a telemedicine medical service.

CHAPTER 30. MEDICAID HOSPICE PROGRAM
SUBCHAPTER B. ELIGIBILITY REQUIREMENTS
40 TAC §30.14

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40 Texas Administrative Code, Chapter 30, Medicaid Hospice Program, an amendment to §30.14, concerning an emergency rule amendment in response to COVID-19 to allow determination of an individual’s continued eligibility for hospice care for a period of care after the initial period through a telemedicine medical service.

HHSC is adopting an emergency amendment to §30.14(e) to allow a hospice physician or hospice advanced practice registered nurse to determine an individual’s continued eligibility for hospice care for a period of care after the initial period by conducting the assessment as a telemedicine medical service as defined in Texas Government Code §531.001(8). This amendment will reduce the risk of transmitting COVID-19.

BACKGROUND AND JUSTIFICATION

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 amendment to §30.14, concerning Certification of Terminal Illness and Record Maintenance.

Department of State Health Services

In Addition Re:

Amendment Extending the Temporary Schedule I Status of Five Synthetic Substances; Removing Samidorphan from Schedule II; Placing Fourteen Fentanyl Related Substances into Schedule I; and Placing Serdexmethylphenidate in Schedule IV.

The Acting Administrator of the Drug Enforcement Administration issued an order to extend the temporary schedule I status of ethyl 2-(1-(5- fluoropentyl)-1H-indazole-3-carboxamido)-3,3-dimethylbutanoate (Other name: 5F-EDMB-PINACA); methyl 2-(1-(5-fluoropentyl)-1H-indole-3- carboxamido)-3,3-dimethylbutanoate (Other name: 5F-MDMB-PICA); N- (adamantan-1-yl)-1-(4-fluorobenzyl)-1H-indazole-3-carboxamide (Other names: FUB-AKB48, FUB-APINACA, AKB48, N-(4-fluorobenzyl)); 1-(5- fluoropentyl)-N-(2-phenylpropan-2-yl)-1H-indazole3-carboxamide (Others names: 5F-CUMYL-PINACA; SGT-25); and (1-(4- fluorobenzyl)-1H-indol-3-yl)(2,2,3,3-tetramethylcyclopropyl)methanone (Other name: FUB-144), and their optical, positional, and geometric isomers, salts, and salts of isomers. This order will extend the temporary scheduling of 5F-EDMB-PINACA, 5F-MDMB-PICA, FUB-AKB48, 5F-CUMYLPINACA and FUB-144 for one year or until the permanent scheduling action for these substances is completed, whichever occurs first. This order was published in the March 31, 2021 issue of the Federal Register, Volume 86, Number 60, pages 16669-16670 and was effective April 16, 2021.

A PDF detailing the amendment can be found at 46 Tex Reg 4479.