Texas Register June 10, 2022 Volume: 47 Number: 23

Texas Register Table of Contents

1 Texas Health and Human Services Commission
2 Department of State Health Services
- - 2.0.1 Proposed Rules Re:
3 Texas Board of Chiropractic Examiners
- - 3.0.1 Adopted Rules Re:
4 Texas Department of Insurance
- - 4.0.1 Adopted Rules Re:
    - 4.0.1.1 New 28 TAC §§21.5401 – 21.5406, describing rules related to the all-payor claims database.
5 Texas Optometry Board
- - 5.0.1 Proposed Rule Reviews Re:
    - 5.0.1.1 The Texas Optometry Board (Board) proposes to review and consider for readoption, revision, or repeal the Chapters 277, Practice and Procedure, and Chapter 279, Interpretations.

Texas Health and Human Services Commission

Proposed Rules Re:

Amending 1 TAC §§354.1031, 354.1035, 354.1037, 354.1039, 354.1040, 354.1043, to outline rules relating to the expansion of the healthcare workforce during the COVID-19 pandemic.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
DIVISION 3. MEDICAID HOME HEALTH SERVICES
1 TAC §§354.1031, 354.1035, 354.1037, 354.1039, 354.1040, 354.1043

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1031, concerning General; §354.1035, concerning Recipient Qualifications for Home Health Services; §354.1037, concerning Written Plan of Care; §354.1039, Home Health Services Benefits and Limitations; §354.1040, concerning Requirements for Wheeled Mobility Systems; and §354.1043, concerning Competitive Procurement of Durable Medical Equipment (DME) and Supplies.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is in response to recent federal legislation that prompted the Centers for Medicare & Medicaid Services (CMS) to issue interim final rule, CMS-5531-IFC (Interim Final Rule with Comment), to expand the healthcare workforce during the COVID-19 pandemic. CMS-5531-IFC is a permanent federal regulation that is not subject to the COVID-19 Public Health Emergency and became effective on May 8, 2020, with a retroactive application date of March 1, 2020.

To align the Medicaid home health services rules with CMS-5531-IFC, this proposal changes the requirement that a plan of care for covered Medicaid home health services can only be recommended, signed, and dated by a recipient’s physician and allows a physician assistant (PA) or an advanced practice registered nurse who is licensed as a certified nurse practitioner (CNP) or clinical nurse specialist (CNS) to order home health services as described in the proposed rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §354.1031 adds definitions of “allowed practitioner,” “durable medical equipment (DME),” “HHSC,” and “supplies”. The proposed amendment revises the definitions of “home health aide,” “home health agency,” “home health services,” and “plan of care.” The proposed amendment deletes the definitions of “Department,” “Medicare fee schedule,” “expendable medical supply acquisition fee,” and “expendable medical supplies.”
The proposed amendment to §354.1035 adds “allowed practitioner” to allow a PA, CNP, or CNS to order home health services.
The proposed amendment to §354.1037 adds “allowed practitioner” to allow a PA, CNP, or CNS to order home health services.
The proposed amendment to §354.1039 revises the title of the section to “Benefits and Limitations of Home Health Services” and adds “allowed practitioner” to allow a PA, CNP, or CNS to order home health services. The proposed amendment reorganizes the section for readability and updates terminology to align with new definitions in §354.1031. The proposed amendment also adds a legally authorized representative and a court appointed guardian to the list of persons who have been or could be taught to administer injections to a recipient in subsection (b)(3)(D). The proposed amendment includes minor editorial changes that improve clarity.
The proposed amendment to §354.1040 adds “allowed practitioner” in subsection (e)(1). The proposed amendment updates references to state law, and includes minor editorial changes.
The proposed amendment to §354.1043 adds “allowed practitioner” in paragraph (1)(B). The proposed amendment replaces “department” with “HHSC” and includes minor editorial changes.

New 26 TAC §§306.101, 306.103, 306.105, 306.107, 306.109, 306.111, concerning certification, recertification, and certification maintenance requirements for Texas Certified Community Behavioral Health Clinics (T-CCBHCs).

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER C. TEXAS CERTIFIED COMMUNITY BEHAVIORAL HEALTH CLINICS
26 TAC §§306.101, 306.103, 306.105, 306.107, 306.109, 306.111

OVERVIEW

The Texas Health and Human Services Commission (HHSC) proposes new §306.101, concerning Purpose; §306.103, concerning Application; §306.105, concerning Definitions; §306.107, concerning Certification Eligibility; §306.109, concerning Application Process; and §306.111, concerning Certification Standards.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to adopt existing certification, recertification, and certification maintenance requirements for Texas Certified Community Behavioral Health Clinics (T-CCBHCs). The proposal outlines requirements for T-CCBHCs serving persons with mental illness, severe emotional disturbances, and substance use disorders.

Certification requirements for Community Behavioral Health Clinics were mandated by a Substance Abuse and Mental Health Services Administration (SAMHSA) grant awarded to Texas in 2015. HHSC also recognized the CCBHC model as an emerging best practice and committed to increasing the number of CCBHCs to 19 as a goal in fiscal year 2020 in the Texas Health and Human Services Business Plan: Blueprint for a Healthy Texas. To date, the state has exceeded the goal and intends to certify all interested and qualified local mental health authorities and local behavioral health authorities as CCBHCs in addition to other interested qualified providers. As of November 2021, 250 counties are served by a T-CCBHC.

SECTION-BY-SECTION SUMMARY

Proposed new §306.101 describes the purpose of the subchapter.
Proposed new §306.103 establishes rule applicability to T-CCBHCs.
Proposed new §306.105 provides definitions for terminology used in the subchapter.
Proposed new §306.107 establishes Texas applicant certification eligibility criteria regarding staffing requirements, availability and accessibility of services, care coordination, scope of service, reporting, and organizational authority.
Proposed new §306.109 describes the T-CCBHC application process regarding application submittal, application denial criteria, documentation, and timeframe for submittal of requested supplemental information.
Proposed new §306.111 establishes Texas applicant certification standards including maintaining all required licenses and other parameters for T-CCBHC certification and recertification.

Adopted Rules Re:

New 26 TAC §742.508, concerning requirements for visual and auditory supervision when an infant is engaged in tummy time for family homes.

CHAPTER 742. MINIMUM STANDARDS FOR LISTED FAMILY HOMES
SUBCHAPTER E. BASIC CARE REQUIREMENTS
26 TAC §742.508

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §742.508, concerning What are the requirements when an infant is engaged in tummy time, in Texas Administrative Code, Title 26, Part 1, Chapter 742, Minimum Standards for Listed Family Homes, Subchapter E, Basic Care Requirements.

New §742.508 is adopted without changes to the proposed text as published in the March 18, 2022, issue of the Texas Register (47 Tex Reg 1442). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The new rule is necessary to implement the portion of Senate Bill 225, 87th Legislature, Regular Session, 2021, that amended Chapter 42, Texas Human Resources Code by adding Section 42.04291. This new section requires the HHSC Executive Commissioner to establish standards for listed family homes and registered and licensed child-care homes for the visual and auditory supervision of an infant engaged in time on the infant’s stomach while awake (that is, tummy time). To meet this legislative requirement, HHSC Child Care Regulation proposed a new rule for listed family homes that specifies supervision requirements for when an infant is engaged in tummy time activities.

New 26 TAC §747.2318, concerning requirements for visual and auditory supervision when an infant is engaged in tummy time for child-care homes.

CHAPTER 747. MINIMUM STANDARDS FOR CHILD-CARE HOMES
SUBCHAPTER H. BASIC CARE REQUIREMENTS FOR INFANTS
26 TAC §747.2318

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §747.2318, concerning What are the requirements when an infant is engaged in tummy time, in Texas Administrative Code, Title 26, Part 1, Chapter 747, Minimum Standards for Child-Care Homes, Subchapter H, Basic Care Requirements for Infants.

New §747.2318 is adopted without changes to the proposed text as published in the March 18, 2022, issue of the Texas Register (47 TexReg 1443). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The new rule is necessary to implement the portion of Senate Bill 225, 87th Legislature, Regular Session, 2021, that amended Chapter 42, Texas Human Resources Code by adding Section 42.04291. This new section requires the HHSC Executive Commissioner to establish standards for listed family homes and registered and licensed child-care homes for the visual and auditory supervision of an infant engaged in time on the infant’s stomach while awake (that is, tummy time). To meet this legislative requirement, HHSC Child Care Regulation proposed a new rule for licensed and registered child-care homes that specifies supervision requirements for when an infant is engaged in tummy time activities.

In Addition Re:

Public Notice – Adult Mental Health §1915(i) Home and Community-based Services (HCBS)

OVERVIEW

The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the state plan application for the Adult Mental Health §1915(i) Home and Community-based Services (HCBS) State Plan benefit. CMS has approved the benefit through August 31, 2025. The proposed effective date for the amendment is August 31, 2022. There is not a fiscal impact to the Medicaid State Plan.

BACKGROUND AND JUSTIFICATION

To ensure continuity of care for Texas Medicaid clients during the COVID-19 pandemic, the Health and Human Service Commission (HHSC) authorized the use of telemedicine, telehealth, and audio-only platforms to deliver a range of services. House Bill (HB) 4 (87th Legislative Session, 2021) requires HHSC to expand services eligible to be delivered via telemedicine, telehealth or other teleservice in any program, benefit, or service HHSC determines to be cost-effective and clinically effective. It also requires HHSC to authorize the use of audio-only delivery of behavioral health services determined by HHSC to be cost-effective and clinically effective and authorizes HHSC to implement audio-only benefits in any program or services if determined by HHSC to be clinically effective and cost-effective.

The 1915(i) State Plan Amendment (SPA) for Home and Community-Based Services Adult Mental Health (HCBS-AMH) includes two service descriptions which speak to face to face service delivery. HHSC is requesting these services, which are Community Psychiatric Supports and Treatment and Psychosocial Rehabilitation, continue with telemedicine, telehealth, and audio only service delivery through amending the SPA. In addition to continued flexibilities for these services, HHSC is also requesting an amendment to the face-to-face assessment section by including additional language to ensure program compliance with 42 CFR 441.720(a)(1)(i).

Public Notice Home and Community based Services (HCS) Program Amendment

OVERVIEW

The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the waiver application for the Home and Community based Services (HCS) Program. HHSC administers the HCS Program under the authority of Section 1915(c) of the Social Security Act. CMS has approved the HCS waiver application through August 31, 2023. The proposed effective date for this amendment is November 1, 2022.

Public Waiver – TxHmL Waiver Amendment

OVERVIEW

The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the waiver application for the Texas Home Living Program. HHSC administers the TxHmL Program under the authority of Section 1915(c) of the Social Security Act. CMS has approved the TxHmL waiver application through February 28, 2027. The proposed effective date for this amendment is November 1, 2022.

Department of State Health Services

Proposed Rules Re:

Repealing 25 TAC §61.91, concerning Diabetes Mellitus Glycosylated Hemoglobin Registry.

CHAPTER 61. CHRONIC DISEASES
SUBCHAPTER F. DIABETES REGISTRY
25 TAC §61.91

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes the repeal of §61.91, concerning Diabetes Mellitus Glycosylated Hemoglobin Registry.

The repeal of §61.91 is proposed in its entirety to comply with S.B. 970, which eliminated the statutory requirement for a diabetes registry, thus making the rule no longer necessary.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed repeal of §61.91 is necessary to implement Senate Bill (S.B.) 970, 87th Legislature, Regular Session, 2021, which repealed Texas Health and Safety Code, Chapter 95, Subchapter B, Diabetes Mellitus Registry. S.B. 970 removed the requirement for a diabetes registry.

The registry was established as a pilot program in accordance with House Bill (H.B.) 2132, 80th Legislature, Regular Session, 2007, and H.B. 1363, 81st Legislature, 2009. DSHS coordinated with the San Antonio Metropolitan Health District to establish the pilot registry.

S.B. 510, 82nd Legislature, Regular Session, 2011, amended Chapter 95 by adding Subchapter B, Diabetes Mellitus Registry, to make public health district participation in the diabetes mellitus registry voluntary and designated a public health district solely responsible for the cost of establishing and administering the registry program in their district. As a result, no data has been submitted since 2011.

Repealing §§98.1 – 98.13, concerning the Texas HIV State Pharmacy Assistance Program.

CHAPTER 98. TEXAS HIV MEDICATION PROGRAM
SUBCHAPTER A. TEXAS HIV STATE PHARMACY ASSISTANCE PROGRAM
25 TAC §§98.1 – 98.13

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes the repeal of Texas Administrative Code Title 25, Chapter 98, Subchapter A, §§98.1 – 98.13 and Subchapter C, Division 1, §§98.101 – 98.115, 98.117 – 98.119, and proposes new Subchapter C, Division 1, §§98.101 – 98.109, concerning the Texas HIV Medication Program (THMP).

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to allow the THMP to comply with the findings and program improvement recommendations noted in the December 2019 program review conducted by the Health Resources and Services Administration (HRSA), the agency that provides federal funding, and the Medication Advisory Committee (MAC) recommendations.

The Texas Administrative Code, Title 25, Chapter 98 provides governing rules for the THMP, which provides medication for the treatment of HIV and its related complications for low-income Texans. Subchapter A establishes the Texas HIV State Pharmacy Assistance Program (SPAP). Subchapter C, Division 1 establishes the general provisions of THMP. DSHS proposes to repeal and replace Subchapter A and Subchapter C, Division 1 to update eligibility requirements for THMP.

SECTION-BY-SECTION SUMMARY

The proposed rules replace Subchapter A and Subchapter C, Division 1 with a consolidated set of rules in Subchapter C, Division 1. This will clarify insurance assistance that THMP may provide, replace a cumbersome program eligibility spenddown process with a universal standard deduction, and update language to be more reflective of current operations. These proposed changes will allow THMP to align with expectations from HRSA and allow all THMP programs to be accurately represented.
The new §§98.101 – 98.109 set forth the purpose, definitions, THMP eligibility criteria, specific program eligibility criteria, eligibility determination process, appeals process and exceptions, THMP benefits, limitations and cost containment, and nondiscrimination and confidentiality requirements for the THMP program.

Repealing §§98.101 – 98.109 and new §§98.101 – 98.115, 98.117 – 98.119 to update the THMP eligibility criteria, THMP benefits, limitations and cost containment, and nondiscrimination and confidentiality requirements for the THMP program.

CHAPTER 98. TEXAS HIV MEDICATION PROGRAM
SUBCHAPTER C. TEXAS HIV MEDICATION PROGRAM
DIVISION 1. GENERAL PROVISIONS
25 TAC §§98.101 – 98.115, 98.117 – 98.119

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed rules replace Subchapter A and Subchapter C, Division 1 with a consolidated set of rules in Subchapter C, Division 1. This will clarify insurance assistance that THMP may provide, replace a cumbersome program eligibility spenddown process with a universal standard deduction, and update language to be more reflective of current operations. These proposed changes will allow THMP to align with expectations from HRSA and allow all THMP programs to be accurately represented.
The new §§98.101 – 98.109 set forth the purpose, definitions, THMP eligibility criteria, specific program eligibility criteria, eligibility determination process, appeals process and exceptions, THMP benefits, limitations and cost containment, and nondiscrimination and confidentiality requirements for the THMP program.

Amending 25 TAC §157.11 to require that each applicable EMS medical director approve protocols that give preference to the emergency transfer of a dialysis patient from the patient’s location directly to an outpatient end-stage renal disease facility during a declared disaster.

CHAPTER 157. EMERGENCY MEDICAL CARE
SUBCHAPTER B. EMERGENCY MEDICAL SERVICES PROVIDER LICENSES
25 TAC §157.11

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes an amendment to §157.11, concerning the Requirements for an EMS Provider License.

The proposed amendment provides language to §157.11(c)(7)(N) to reference Health and Safety Code §773.112(d). The amendment is based on S.B. 1876, which states that rules shall require that each applicable EMS medical director approve protocols that give preference to the emergency transfer of a dialysis patient from the patient’s location directly to an outpatient end-stage renal disease f

BACKGROUND AND JUSTIFICATION

The purpose of the proposed amendment to §157.11 is necessary to comply with Senate Bill (S.B.) 1876, 87th Legislature, Regular Session, 2021, which amended Texas Health and Safety Code §773.112, relating to the emergency transfer of a dialysis patient during a declared disaster. S.B. 1876 requires each emergency medical services (EMS) provider’s medical director to approve a protocol to give preference to the emergency transfer of a dialysis patient during a declared disaster.

The amendment was reviewed by the Governor’s EMS and Trauma Advisory Council (GETAC), as required by Texas Health and Safety Code §773.012, in public meetings held on November 22, 2021, and February 7, 2022. No comments were received from the advisory council.

Amending 25 TAC §229.661, §§229.702 – 229.704 to clarify Cottage Food Production and Farmers’ Markets operations.

CHAPTER 229. FOOD AND DRUG
SUBCHAPTER EE. COTTAGE FOOD PRODUCTION OPERATIONS
25 TAC §229.661, §§229.702 – 229.704.

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes amendments to §229.661, concerning Cottage Food Production Operations and §§229.702 – 229.704, concerning Farmers’ Markets.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to comply with amendments to Texas Health and Safety Code Chapter 437, Regulation of Food Service Establishments, Retail Food Stores, Mobile Food Units, And Roadside Food Vendors as promulgated in Senate Bill (S.B.) 617, 87th Legislature, Regular Session, 2021. S.B. 617 clarifies who may sell products at a farmers’ market by changing the definition of “farmers’ market” at Texas Health and Safety Code §437.020(a)(1) and adding a new definition for “food producer” at Texas Health and Safety Code §437.020(a)(3). The two definitions effectively prohibit a jurisdiction from construing the statute to exclude non-farmers or non-farm-related vendors and products from farmers’ markets within its jurisdiction.

S.B. 617 also amends Texas Health and Safety Code §437.0065, which clarifies which food vendors may be permitted to sell food at a farmers’ market and necessitates amendment of the statutory parameters for permitting in §229.703. This includes a $100/per annum cap on a single permit that is valid at any farmers’ market in the jurisdiction of the permitting authority.

In addition, it is necessary to make editorial changes to the rules due to the changes of the Retail Food Establishment rules in 25 TAC, Chapter 228, which includes the adoption by reference of the U.S. Food and Drug Administration Food Code 2017 (Food Code). Rule citations in Chapter 229, Subchapters EE and FF are changed from Chapter 228 to the Food Code. The revisions update the definition of “food establishment” in §229.661(b)(9); change cooking times and requirements; and update references to “time and temperature control for safety food (TCS food)” in §229.704. Other editorial changes are made for consistency and clarity throughout the subchapters.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §229.661(b)(7) changes the definition of “farmers’ market” to correspond with the amended definition at Texas Health and Safety Code §437.020(a)(1).
The proposed amendment to §229.661(b)(9) changes the definition of “food establishment” to correspond with the definition contained in the Food Code.
The proposed amendment adds Subpart F to the previous citation from the Code of Federal Regulations at §229.661(d)(5).
The proposed amendment to §229.702(2) adds a definition of “farmer” to clarify the term in the rules.
The proposed amendment to §229.702(3) changes the definition of “farmers’ market” to correspond with Texas Health and Safety Code §437.020(a)(1). In addition, DSHS added verbiage for clarification.
The proposed amendments to §229.702(4) and (11) change the rule citations from the former Retail Food Establishment rules to the Food Code.
New §229.702(6) adds a new definition for “food producer” to correspond with the new definition at Texas Health and Safety Code §437.020(a)(3).
The proposed amendment to §229.702(8) deletes the definition of “producer,” which is replaced by the new definition of “food producer” at §229.702(6).
Section 229.702(2) – (10) are renumbered to paragraphs (3) – (11) to account for the addition of new paragraphs (2) and (6) and the deletion of previous paragraph (8).
The proposed amendment to §229.703 clarifies requirements for a permit to sell food at a farmers’ market to correspond with Texas Health and Safety Code §437.0065.
The proposed amendments to §229.704 change references to “potentially hazardous food” to the more current usage that is “Time and temperature control for safety (TCS food).”
The proposed amendment to §229.704(c) deletes the phrase “at all times” to avoid redundancy.
The proposed amendments to §229.704(d)(1) and (2) change cooking times to reflect requirements in the Food Code.
The proposed amendments to §229.704(d)(5)(A) and (f) change the rule citations from the former Retail Food Establishment rules to the Food Code.
The proposed amendments add the word “Texas” for clarity in the Health and Safety Code and agency names throughout the subchapters.

Texas Board of Chiropractic Examiners

Adopted Rules Re:

New 22 TAC §79.5, describing prohibited conduct including associating with an unlicensed individual.

CHAPTER 79. UNPROFESSIONAL CONDUCT
22 TAC §79.5

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §79.5, Associating with an Unlicensed Individual. Texas Occupations Code §201.5025(a)(5 – 7) (Prohibited Practices by Chiropractor or License Applicant) forbids a licensee from associating with an individual whose license to practice chiropractic has been suspended or revoked in any jurisdiction. This language does not explicitly prohibit a licensee from associating with an individual who surrendered a license to the Board in lieu of disciplinary action, although the Board has that authority implicitly through other statutes and Board rules.

BACKGROUND AND JUSTIFICATION

The Board offers licensees who have been arrested for serious violent or financial crimes the option of immediately surrendering their licenses to the Board instead of going through the time and expense of a revocation hearing at the State Office of Administrative Hearings. The Board believes this option better fulfills its duty to protect the public than an administrative hearing by quickly removing from the ranks of licensed chiropractors an individual who has shown to be a danger to patients.

Occupations Code §201.5025(a)(5 – 7) prohibits licensees from associating with, in any manner, individuals who have had their license to practice chiropractic suspended or revoked in any jurisdiction. This proposed rule makes explicit that the prohibition includes individuals who have surrendered their licenses in lieu of discipline.

Amending 22 TAC §80.1, to simplify the the process of Board notification within the complaint process.

CHAPTER 80. COMPLAINTS
22 TAC §80.1

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to 22 TAC §80.1 (Duty to Respond to Complaint). The purpose is to simplify the process of Board notification to an individual of a complaint filed against him.

BACKGROUND AND JUSTIFICATION

This amendment simply removes email as one of the two formal methods the Board must use to notify an individual of a complaint filed against him. The proposed amendment keeps the procedural requirement that the Board must notify an individual of a complaint by registered mail.

The Board’s Executive Director, Patrick Fortner, has determined that for the first five-year period the amended rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the amendment as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendment will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

Amending 22 TAC §80.3 to include a new subsection that makes it a violation of Board rules if an individual fails to comply with any term of an agreed order approved by the Board.

CHAPTER 80. COMPLAINTS
22 TAC §80.3

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to 22 TAC §80.3 (Disciplinary Guidelines) by adding new subsection (m). The new subsection (m) will make it a violation of Board rules if an individual fails to comply with any term of an agreed order approved by the Board.

BACKGROUND AND JUSTIFICATION

Mr. Fortner has determined that, for each year of the first five years the amended rule will be in effect, the public benefit is to make respondents who voluntarily sign agreed orders with the Board to be liable for failing to honor that agreement.

Amending 22 TAC §81.2 to remove the requirement that a notice of hearing and formal complaint be sent to a respondent by registered or certified mail.

CHAPTER 81. ENFORCEMENT ACTIONS AND HEARINGS
22 TAC §81.2

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to 22 TAC §81.2 (Notice for Enforcement and Other Hearings) by removing the requirement that, before a hearing at the State Office of Administrative Hearings (SOAH), a notice of hearing and formal complaint be sent to a respondent by registered or certified mail.

BACKGROUND AND JUSTIFICATION

Under the Board’s current rules, the Board uses certified mail to initially notify a respondent of a complaint by sending a certified notice of complaint to the respondent’s physical address on file with the Board (22 TAC §80.1), which gives notice to the respondent of the allegations against him. During complaint investigations, respondents (and their attorneys, if any) usually formally communicate with Board investigators and legal staff using email. All Board licensees are required to maintain a current physical and email address on file with the Board (22 TAC §72.13). Additionally, as of March 2020, SOAH requires all parties in a contested case to use the eFileTexas electronic filing system for judicial filings, including for notices of hearing and formal complaint; certified mail is no longer a procedural requirement.

New 22 TAC §82.4, to permit agency employees to contribute earned hours to an established family leave pool.

CHAPTER 82. INTERNAL BOARD PROCEDURES
22 TAC §82.4

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §82.4 (Family Leave) to comply with the requirements of Government Code §§661.021 – 661.028.

BACKGROUND AND JUSTIFICATION

The Board’s Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the repeal as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed rule will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

Mr. Fortner has determined that, for each year of the first five years the proposed rule will be in effect, the public benefit is to permit agency employees to contribute earned hours to a family leave pool.

Texas Department of Insurance

Adopted Rules Re:

New 28 TAC §§21.5401 – 21.5406, describing rules related to the all-payor claims database.

CHAPTER 21. TRADE PRACTICES
SUBCHAPTER TT. ALL-PAYOR CLAIMS DATABASE
28 TAC §§21.5401 – 21.5406

OVERVIEW

The Commissioner of Insurance adopts new 28 TAC §§21.5401 – 21.5406, concerning the all-payor claims database.

The Commissioner adopts §21.5406 without changes and §§21.5401 – 21.5405 with changes to the proposed text published in the April 8, 2022, issue of the Texas Register (47 Tex Reg 1861). Sections 21.5401 – 21.5405 will be republished. The adoption implements House Bill 2090, 87th Legislature, 2021.

BACKGROUND AND JUSTIFICATION

Insurance Code Chapter 38, Subchapter I, requires establishment of an all-payor claims database to increase public transparency of health care information and improve the quality of health care in this state. Insurance Code §38.403 provides that the Commissioner is to adopt rules establishing fixed terms for members of a stakeholder advisory group. Insurance Code §38.404 requires the Texas Department of Insurance (the department) to collaborate with the Center for Health Care Data at The University of Texas Health Science Center at Houston (the Center) to aid in the establishment of the database. Insurance Code §38.409 requires the Commissioner, in consultation with the Center, to adopt rules that specify the types of data a payor is required to provide; detail the schedule, frequency, and manner of data submission; and establish oversight and enforcement mechanisms.

SECTION-BY-SECTION SUMMARY

Section 21.5401. New §21.5401 identifies the types of health plans that are subject to the requirements to produce all-payor claims data files. As proposed, the list of plans subject to these requirements includes county employee health benefit plans established under Local Government Code Chapter 157 and group dental, health and accident, or medical expense coverage provided by a risk pool created under Local Government Code Chapter 172. The department invited comments on whether these plans qualify as a “payor” under Texas Insurance Code §38.402(7) and can be subject to the requirements of this rulemaking. The department received one comment on this subject that was in support of including these types of plans within the scope of the rules. New §21.5401 also specifies that the data required by new Subchapter TT is limited to Texas resident members.

In response to other comments, §21.5401(b)(9) is changed to permit, but not require, payors to submit data with respect to Medicare Supplement plans.

Section 21.5402. New §21.5402 provides definitions of terms used throughout the new rules, including various types of data files. The department changes “The Center for Healthcare Data” to “The Center for Health Care Data” in paragraph (2) of this section.

Section 21.5403. New §21.5403 describes the database’s common data layout (CDL) and permits the Center to provide flexibility for payors submitting data by issuing a submission guide or other technical guidance for existing requirements. It also specifies that any inconsistencies in the Center’s submission guide and these rules will be controlled by the text of the rules. The Texas All-Payor Claims Database (APCD) CDL is modified in response to comments. As a result, the version number and date of the Texas APCD CDL is updated. Changes made to the Texas APCD CDL include:

Threshold values are removed for several data fields where they are inapplicable because the fields are required only if available.
The Unassigned field is clarified to indicate that it is not a required field.
The Employment Status field is changed to be required only if available, and the threshold is removed in response to a comment.
The description of the Allowed Amount field is modified to clarify the instruction for capitated claims in response to a comment.
Threshold values are clarified for certain data fields in the medical claims data file that previously indicated, “Not required if Provider ID can be linked to provider file.” The threshold values now match the values for the corresponding fields in the provider data file.
Threshold values are clarified for certain data fields in the medical and pharmacy claims data files that previously indicated, “May be left blank if Member ID links to eligibility file.” The threshold values now match the values for the corresponding fields in the eligibility data file.
Data fields are added to the dental claims file. The data fields are consistent with the All-Payer Claims Database Common Data Layout established by the National Association of Health Data Organizations. Added data fields are either optional or required only if available.

Section 21.5404. New §21.5404 provides technical requirements concerning the formatting, encryption, and transmission of data. It instructs payors or their designees to register with the Center to obtain their credentials and unique member identification (ID) numbers to be used with the submission and naming of data. It also prohibits the submission of duplicate data submitted by a third party. In response to comments, subsection (a) is modified to permit, rather than require, certain payors to ask sponsors of health benefit plans referenced in Insurance Code §38.407 whether they will voluntarily submit plan data. In response to comments, the adopted rule clarifies that the Texas Health and Human Services Commission may submit data on behalf of all payors participating in applicable plans and programs overseen by the Commission. Also in response to comments, the adopted rule now permits, but does not require, payors to submit data with respect to Medicare Supplement plans.

Section 21.5404 also lists the data files that must be submitted consistent with the requirements of the APCD CDL, including standardized values and code sources. It requires files to include information that enables the data to be separated on the basis of the types of plans. It clarifies certain requirements for claims data files, including specifying that all claims data must be submitted for a given reporting period based on the claim adjudication date. In response to comments, the adopted rule permits files to be submitted within multiple zip files, and clarifies the types of denied claims that must be reported.

This new section also sets forth requirements related to reporting members’ social security numbers or unique member IDs, requires enrollment and eligibility data to be reported at the individual member level, and requires header and trailer records for file submissions. In response to comments, the adopted rule relaxes requirements about when a unique member ID may change.

The department also changes “USB disk” to “USB drive” in paragraph (d)(1) and “transmit the filing” to “transmit the files” in paragraph (d)(4) of this section.

Section 21.5405. New §21.5405 describes the timing and frequency of the required data submissions. It also directs payors to submit test data, historical data, and monthly data on the basis of notice provided by the Center. As proposed, the initial date for submission of monthly data would be no sooner than January 1, 2023. In response to comments, that date is changed to March 1, 2023, and additional time is provided for the submission of test and historical data files. This new section also provides an extension for certain small payors; allows other payors an opportunity to request an extension or a temporary exception from some requirements related to the submission of data; and outlines the Center’s role in assessing, receiving, requesting corrections to, and rejecting data. In response to comments, the adopted rule adds a requirement that the Center communicate receipt of data and respond to a request for an extension or temporary exception within 14 calendar days.

Section 21.5406. New §21.5406 prescribes the fixed terms to be served by members of the stakeholder advisory group, as directed by statute. It provides dates for the initial terms of the stakeholder advisory group as well as the staggered terms. This new section outlines the obligations of members with respect to required disclosures, conflicts of interest, standards of conduct, and removal for good cause.

Texas Optometry Board

Proposed Rule Reviews Re:

The Texas Optometry Board (Board) proposes to review and consider for readoption, revision, or repeal the Chapters 277, Practice and Procedure, and Chapter 279, Interpretations.

OVERVIEW

Chapter 277, Practice and Procedure, and

Chapter 279, Interpretations.

This review is conducted in accordance with the requirements of Texas Government Code §2001.039, which requires state agencies, every four years, to assess whether the initial reasons for adopting a rule continue to exist.

BACKGROUND AND JUSTIFICATION

During the review process, the Board may determine whether a specific rule requires amendments to refine the Board’s complaint or disciplinary process; whether the rules reflect current practice interpretations; whether the rules reflect current procedures; that no changes to a rule as currently in effect are necessary; or that a rule is no longer valid or applicable. Rules may also be combined or reduced for simplification and clarity when feasible. Any proposed amendments or repeal of a rule or chapter as a result of the review will be published in the Proposed Rules section of the Texas Register and will be open for an additional 30-day public comment period before final adoption or repeal.

Comments on the review of Chapter 277, General Rules, and Chapter 279, Interpretations, may be submitted to Texas Optometry Board, Attn: Kelly Parker, 333 Guadalupe, Suite 2-420, Austin, Texas 78701 or Kelly.parker@tob.texas.gov. The deadline for comments is thirty days after the date this notice is published in the Texas Register.