Texas Register Table of Contents
- 1 The Governor
- 2 Department of State Health Services
- 3 Health and Human Services Commission
- 4 Texas State Board of Pharmacy
- 5 Cancer Preventions and Research Institute of Texas
- 6 Department of Aging and Disability Services
The Governor
Proclamation 41-3905
The Governor renews the disaster proclamation for all counties in Texas in response to the ongoing COVID-19 pandemic.
OVERVIEW
In accordance with the authority vested by Section 418.014 of the Texas Government Code, the Governor hereby renews the disaster proclamation for all counties in Texas.
BACKGROUND AND JUSTIFICATION
Pursuant to Section 418.017, the Governor authorizes the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.
Pursuant to Section 418.016, any regulatory statute prescribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforcement of any state statute or administrative rule regarding contracting or procurement would impede any state agency’s emergency response that is necessary to cope with this declared disaster, the Governor hereby suspends such statutes and rules for the duration of this declared disaster for that limited purpose.
Department of State Health Services
Emergency Rules Re:
Amending 25 TAC §448.603 to temporarily permit a licensed chemical dependency treatment facility (CDTF) to provide certain training to staff through live, interactive, instructor-led, electronic means.
CHAPTER 448. STANDARD OF CARE
SUBCHAPTER F. PERSONNEL PRACTICES AND DEVELOPMENT
25 TAC §448.603
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 25, Texas Administrative Code, Chapter 448, Standard of Care, an amendment to §448.603, Training, to expand a licensed chemical dependency treatment facility’s (CDTF) ability to provide staff training on abuse, neglect, and exploitation and nonviolent crisis intervention through live, interactive, instructor-led, electronic means in response to COVID-19.
HHSC is adopting an emergency rule amendment to §448.603(d)(1) to temporarily permit a licensed CDTF to provide abuse, neglect, and exploitation training to staff through live, interactive, instructor-led, electronic means to reduce the risk of COVID-19 transmission. HHSC is also adopting an emergency rule amendment to §448.603(d)(4) to temporarily permit a licensed CDTF to provide nonviolent crisis intervention training to staff through live, interactive, instructor-led, electronic means to reduce the risk of COVID-19 transmission. There are no other changes to §448.603.
BACKGROUND AND JUSTIFICATION
As authorized by Texas Government Code §2001.034, HHSC may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.
The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this amendment to §448.603, concerning Training.
Proposed Rules Re:
New 25 TAC §133.52, which is necessary to implement Senate Bill 2038 to require hospital-owned or hospital-operated freestanding emergency medical care facilities exempt from FEMC licensure to comply with fee and price rules.
CHAPTER 133. HOSPITAL LICENSING
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
25 TAC §133.52
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §133.52, concerning Hospital-Owned or Hospital-Operated Freestanding Emergency Medical Care Facilities.
Proposed new §133.52 sets forth the applicability of the section, defines “unconscionable price,” requires applicable hospital-owned or hospital-operated FEMC facilities to comply with the provisions of S.B. 2038, and outlines HHSC’s authority to impose an administrative penalty if an FEMC facility required to comply with this section violates HSC §241.224.
BACKGROUND AND JUSTIFICATION
The proposal is necessary to implement Senate Bill (S.B.) 2038, 87th Legislature, Regular Session, 2021, which, in part, added Texas Health and Safety Code (HSC) Chapter 241, Subchapter I-1. S.B. 2038 requires certain hospital-owned or hospital-operated freestanding emergency medical care (FEMC) facilities exempt from FEMC facility licensure to comply with certain fee and price disclosure requirements, prohibits FEMC facilities from charging certain fees, and prohibits certain pricing practices.
S.B. 2038 requires an applicable hospital-owned or hospital-operated FEMC facility to disclose its prices for any testing and vaccination services the facility offers for an infectious disease for which a state of disaster has been declared. S.B. 2038 prohibits the FEMC facility from charging a facility or observation fee for a health care service the facility provides an individual accessing the service from a vehicle. During a declared state of disaster, S.B. 2038 prohibits a hospital-owned or hospital-operated FEMC facility from charging an “unconscionable price,” as defined by HSC §241.224, for products and services provided by the facility or intentionally charging a third-party payor a higher price than an individual for the same product or service.
The proposed new rule also implements HHSC’s authority under S.B. 2038 to impose an administrative penalty if a hospital-owned or hospital-operated FEMC facility violates the prohibition in S.B. 2038 of certain pricing practices during a declared state of disaster.
Adopted Rule Reviews Re:
OVERVIEW
On behalf of the Texas Department of State Health Services (DSHS), the Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 25, Part 1 of the Texas Administrative Code:
Chapter 91, Cancer
Subchapter A, Cancer Registry
- §91.1 – Purpose
- §91.2 – Definitions
- §91.3 – Who Reports, Access to Records
- §91.4 – What to Report
- §91.5 – When to Report
- §91.6 – How to Report
- §91.7 – Where to Report
- §91.8 – Compliance
- §91.9 – Confidentiality and Disclosure
- §91.10 – Quality Assurance
- §91.11 – Requests for Statistical Cancer Data
- §91.12 – Requests and Release of Confidential Cancer Data
BACKGROUND AND JUSTIFICATION
Notice of the review of this chapter was published in the March 4, 2022, issue of the Texas Register (47 Tex Reg 1107). HHSC received no comments concerning this chapter.
DSHS has reviewed Chapter 91 in accordance with §2001.039 of the Government Code, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist. The agency determined that the original reasons for adopting all rules in this chapter continue to exist and readopts Chapter 91. Any appropriate amendments to Chapter 91 identified by the agency during the rule review will be published in the Proposed Rules section of a future issue of the Texas Register, and will be open for public comment prior to final adoption by the agency.
This concludes agency’s review of 25 TAC Chapter 91, Cancer, as required by the Government Code, §2001.039.
In Addition Re:
Correcting an error in the annual Schedules of Controlled Substances.
OVERVIEW
The Department of State Health Services (department) published the annual Schedules of Controlled Substances in the March 18, 2022, issue of the Texas Register (47 TexReg 1512). Due to an error by the department, the spelling of the substance “&bgr;”-Phenyl fentanyl (N-(1-phenethylpiperidin-4-yl)-N,3-diphenylpropanamide” was incorrect in the schedules. The Schedules are being republished to correct the error.
For more information, visit this week’s issue of the Texas Register at 47 Tex Reg 3320.
Health and Human Services Commission
Emergency Rules Re:
New 26 TAC §500.21, detailing ESRD facility regulatory guidelines regarding staffing ratios, in-home visits, telemedicine, incident reporting, and education and training requirements for staff.
CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER B. END STAGE RENAL DISEASE FACILITIES
26 TAC §500.21
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 500 COVID-19 Emergency Health Care Facility Licensing, new §500.21, concerning an emergency rule in response to COVID-19 in order to update and continue the regulatory requirements for end stage renal disease (ESRD) facilities to reduce barriers to treatment during the COVID-19 pandemic.
HHSC is adopting an emergency rule to reduce barriers to treatment for dialysis patients by updating ESRD facility regulatory guidelines regarding staffing ratios, in-home visits, telemedicine, incident reporting, and education and training requirements for staff.
BACKGROUND AND JUSTIFICATION
As authorized by Texas Government Code §2001.034, HHSC may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.
The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020 proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this rule for ESRD Facility Requirements During the COVID-19 Pandemic.
Proposed Rules Re:
New 26 TAC §509.69, which is necessary to implement Senate Bill 2038 to require hospital-owned or hospital-operated freestanding emergency medical care facilities exempt from FEMC licensure to comply with fee and price rules.
CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
26 TAC §509.69
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §509.69, concerning Fees and Prices.
Proposed new §509.69 defines “unconscionable price,” requires a licensed FEMC facility to comply with the provisions of S.B. 2038, and outlines HHSC’s authority to impose an administrative penalty if a licensed FEMC facility violates HSC §254.160.
BACKGROUND AND JUSTIFICATION
The proposal is necessary to implement Senate Bill (S.B.) 2038, 87th Legislature, Regular Session, 2021, which, in part, amended Texas Health and Safety Code (HSC) Chapter 254, Subchapter D. S.B. 2038 requires licensed freestanding emergency medical care (FEMC) facilities to comply with certain fee and price disclosure requirements, prohibits FEMC facilities from charging certain fees, and prohibits certain pricing practices.
S.B. 2038 requires an FEMC facility to disclose its prices for any testing and vaccination services the facility offers for an infectious disease for which a state of disaster has been declared. S.B. 2038 prohibits an FEMC facility from charging a facility or observation fee for a health care service the facility provides an individual accessing the service from a vehicle. During a declared state of disaster, S.B. 2038 prohibits an FEMC facility from charging an “unconscionable price,” as defined by HSC §254.160, for products and services provided by the facility or intentionally charging a third-party payor a higher price than an individual for the same product or service.
The proposed new rule also implements HHSC’s authority under S.B. 2038 to impose an administrative penalty if an FEMC facility violates the prohibition in S.B. 2038 of certain pricing practices during a declared state of disaster.
Adopted Rules Re:
Amending 1 TAC §351.805, concerning reorganization and formatting of the State Medicaid Managed Care Advisory Committee membership.
CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICES
SUBCHAPTER B. ADVISORY COMMITTEES
1 TAC §351.805
OVERVIEW
The Texas Health and Human Services Commission (HHSC) adopts an amendment to §351.805, concerning State Medicaid Managed Care Advisory Committee. The amendment to §351.805 is adopted without changes to the proposed text as published in the December 10, 2021, issue of the Texas Register (46 TexReg 8295), and therefore will not be republished.
BACKGROUND AND JUSTIFICATION
The adoption of §351.805 implements changes recommended by the State Medicaid Managed Care Advisory Committee (SMMCAC) in March 2020 and changes recommended by HHSC staff. The adopted rule reorganizes and formats the rule so that the SMMCAC rule is consistent with other HHSC advisory committee rules established under Texas Government Code §531.012.
Based on recommendations, the adopted rule extends the SMMCAC membership terms from two to three years. This change gives members more time to use the experience they gain over time as committee members. The date of abolition is changed from December 31, 2023, to December 31, 2024, to extend the advisory functions of the SMMCAC for one additional year.
The adopted rule changes the maximum number of SMMCAC members from 23 to 24, the maximum allowed by Texas Government Code §2110.002(a). The increase to 24 members allows for the total number of 24 members who may be appointed from the three membership categories.
The adopted rule removes, adds, and reorganizes the nineteen categories used to select and appoint representatives to the SMMCAC into three categories. The first category has subcategories of people enrolled in Medicaid managed care from which 10 people can be appointed as members. The second category has subcategories of providers contracted with Texas Medicaid managed care organizations (MCOs) from which 10 members can be appointed. The third category provides for the appointment of representatives of four MCOs participating in Texas Medicaid, including both national and community-based plans, and dental maintenance organizations. The adopted rule makes the composition of the SMMCAC more equal between persons enrolled and providers and allows for the appointment of four MCO representatives as members.
The adopted rule, for each subcategory of person enrolled, allows HHSC to appoint the person or to appoint the person’s family member or an advocate representing people in the person’s subcategory. The term “family member” is defined in §351.801 as a “parent, spouse, grandparent, adult sibling, adult child, guardian, or legally authorized representative.” These changes may make it easier for HHSC to appoint a representative from each subcategory of persons enrolled in Medicaid managed care.
The adopted rule includes in the membership subcategory of people enrolled in Medicaid managed care a person age 21 or older with an intellectual, developmental, or physical disability, including a person with autism spectrum disorder (or a family member or advocate). This language allows for a member to represent persons with autism, whose issues previously were within the Texas Autism Committee’s jurisdiction.
The adopted rule adds a subcategory for a person who is 21 years of age or older and is dually enrolled in Medicaid and Medicare, and adds a subcategory of providers serving Medicaid recipients who are 21 years of age or older and have a disability. These changes help ensure additional representation on the SMMCAC for adults in these subcategories who are Medicaid recipients.
Transferred Rules Re:
Transferring former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 2, Local Authority Responsibilities, Subchapter L, Service Coordination For Individuals With An Intellectual Disability to Texas Administrative Code, Title 26, Part 1, Chapter 331, LIDDA Service Coordination.
OVERVIEW
During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, some agencies were abolished, and their functions transferred to the Texas Health and Human Services Commission (HHSC). Texas Government Code, §531.0202(b), specified the Department of Aging and Disability Services (DADS) be abolished September 1, 2017, after all its functions were transferred to HHSC in accordance with Texas Government Code, §531.0201 and §531.02011. The former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 2, Local Authority Responsibilities, Subchapter L, Service Coordination For Individuals With An Intellectual Disability are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 331, LIDDA Service Coordination.
The rules will be transferred in the Texas Administrative Code effective July 1, 2022.
A table outlining the rule transfer can be found in this week’s edition of the Texas Register at 47 Tex Reg 3275.
In Addition Re:
Public Notice – Specialized Add-on Services Waiver
OVERVIEW
The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to renew the Specialized Add-on Services waiver authorized under §1915(b)(4) of the Social Security Act. CMS has approved the waiver application through November 30, 2022. The proposed effective date for the renewal is December 1, 2022. Once approved the renewal will be effective for another five-year period until November 30, 2027.
BACKGROUND AND JUSTIFICATION
Habilitation Coordination is a service that assists an eligible nursing facility resident who has chosen to remain in the facility to access appropriate specialized services necessary for the resident to achieve quality of life and a level of community participation acceptable to the resident (and legally authorized representative on the resident’s behalf). The habilitation coordinator assists the resident in coordinating all specialized services and provides recommendations related to the services the resident will receive in the community. If the resident decides to leave the nursing facility, a service coordinator is assigned to assist the resident with transitioning into the community.
Habilitation coordination is provided by Local Intellectual and Developmental Disability Authorities (LIDDAs). There is one LIDDA for each service (contract) area for a total of 39 LIDDAs in the state.
Preadmission Screening and Resident Review (PASRR) is a process to identify individuals with a mental illness (MI), an intellectual disability (ID), or a developmental disability (DD) who choose admission into a Medicaid-certified nursing facility (NF) or who are residing in a NF to ensure the appropriateness of NF admission. PASRR is also intended to ensure that individuals with MI, ID, or DD are receiving specialized services to meet their overall physical, mental, and psychosocial needs. This renewal requests to continue a PASRR service under the array of habilitative specialized services, called habilitation coordination, for which the choice of providers is limited to the LIDDA.
Public Notice – Texas State Plan Amendment Effective June 1, 2022.
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 are effective June 1, 2022.
BACKGROUND AND JUSTIFICATION
The purpose of the amendments is to update the State Plan to include Collaborative Care Model (CoCM) services, as directed by Senate Bill 672, 87th Legislature, Regular Session, 2021. The legislation directed HHSC to provide medical assistance reimbursement to a treating health care provider who participates in Medicaid for the provision to a child or adult medical assistance recipient of behavioral health services that are classified by a Current Procedural Terminology code as collaborative care management services.
A corresponding amendment will also update the reimbursement methodology and/or the fee schedules in the current state plan by adjusting fees, rates, or charges for these services. The public notice of intent to submit a state plan amendment for the rates and updates to the fee schedules was published in the April 29, 2022, issue of the Texas Register (47 TexReg 2600). The notice may be accessed at https://www.sos.state.tx.us/texreg/pdf/backview/0429/0429is.pdf.
Copy of Proposed Amendment – Interested parties may obtain additional information and/or a free copy of the proposed amendments by contacting Shae James, State Plan Coordinator, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; or by email at Medicaid_ Chip_ SPA_ Inquiries@hhsc.state.tx.us. Copies of proposed amendment will be available for review at the local county offices of HHSC, (which were formerly the local offices of Texas Department of Aging and Disability Services).
Texas State Board of Pharmacy
Adopted Rules Re:
Amending 22 TAC §281.66 to specify the number of continuing education hours required for reinstatement of a license to practice pharmacy.
CHAPTER 281. ADMINISTRATIVE PRACTICE AND PROCEDURES
SUBCHAPTER C. DISCIPLINARY GUIDELINES
22 TAC §281.66
OVERVIEW
The Texas State Board of Pharmacy proposes amendments to §281.66, concerning Application for Reissuance or Removal of Restrictions of a License or Registration. These amendments are adopted without changes to the proposed text as published in the March 18, 2022, issue of the Texas Register (47 Tex Reg 1413). The rule will not be republished.
The amendments specify the number of continuing education and internship hours required for reinstatement of a license to practice pharmacy.
BACKGROUND AND JUSTIFICATION
Timothy L. Tucker, Pharm.D., Executive Director/Secretary, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Dr. Tucker has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be to provide clear and consistent requirements for reinstatement of a license to practice pharmacy. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.
Amending 22 TAC §291.121 to remove a prohibition against duplicating drugs stored in emergency medication kits.
CHAPTER 291. PHARMACIES
SUBCHAPTER G. SERVICES PROVIDED BY PHARMACIES
22 TAC §291.121
OVERVIEW
The Texas State Board of Pharmacy proposes amendments to §291.121, concerning Remote Pharmacy Services. These amendments are adopted without changes to the proposed text as published in the March 18, 2022, issue of the Texas Register (47 Tex Reg 1415). The rule will not be republished.
The amendments remove a prohibition against duplicating drugs stored in emergency medication kits.
BACKGROUND AND JUSTIFICATION
Timothy L. Tucker, Pharm.D., Executive Director/Secretary, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Dr. Tucker has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be to improve patient care by allowing pharmacies to more efficiently provide drugs stored in emergency medication kits. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.
Cancer Preventions and Research Institute of Texas
Adopted Rules Re:
Amending 25 TAC §703.17 to require the Cancer Prevention and Research Institute of Texas to specify in the award contracts any changes from standard reporting requirements and associated consequences for failing to timely report.
CHAPTER 703. GRANTS FOR CANCER PREVENTION AND RESEARCH
25 TAC §703.17
OVERVIEW
The Cancer Prevention and Research Institute of Texas (“CPRIT” or “the Institute”) proposes amending 25 TAC §703.17, relating to revenue sharing terms and the Institute’s option to take equity ownership in a grant recipient.
BACKGROUND AND JUSTIFICATION
Texas Health and Safety Code §102.256 requires CPRIT to include terms in every grant contract that allow the state to benefit financially from the results of CPRIT-funded grant projects. One option authorized by the statute is through the state taking equity in the grantee. Issues related to equity ownership may affect certain standard grantee reporting requirements, such as the schedule for the grantee to certify and verify its matching funds obligation. The proposed change requires CPRIT to specify in the award contract any changes from standard reporting requirements and associated consequences for failing to timely report.
Department of Aging and Disability Services
Transferred Rules Re:
Transferring former Department of Aging and Disability Services rules in Texas Administrative Code, Title 40, Part 1, Chapter 2, Local Authority Responsibilities, Subchapter L, Service Coordination For Individuals With An Intellectual Disability to the HHSC.
OVERVIEW
During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, some agencies were abolished, and their functions transferred to the Texas Health and Human Services Commission (HHSC). Texas Government Code, §531.0202(b), specified the Department of Aging and Disability Services (DADS) be abolished September 1, 2017, after all its functions were transferred to HHSC in accordance with Texas Government Code, §531.0201 and §531.02011. The former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 2, Local Authority Responsibilities, Subchapter L, Service Coordination For Individuals With An Intellectual Disability are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 331, LIDDA Service Coordination.
The rules will be transferred in the Texas Administrative Code effective July 1, 2022.
A table outlining the rule transfer can be found in this week’s edition of the Texas Register at 47 Tex Reg 3275.