Texas Register March 12, 2021 Volume: 46 Number: 11

Governor

 

Appointments

Governor reappoints Manoranjan “Mano” Mahadeva to the Executive Council of Physical Therapy and Occupational Therapy Examiners

Appointments for February 25, 2021Appointed to the Executive Council of Physical Therapy and Occupational Therapy Examiners, for a term to expire February 1, 2023, Manoranjan “Mano” Mahadeva of Plano, Texas (Mr. Mahadeva is being reappointed).

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Governor

Appointments

Governor reappoints six members to the Governor’s Committee on People with Disabilities

Appointments for March 1, 2021Appointed to the Governor’s Committee on People with Disabilities, for terms to expire February 1, 2023: Ellen M. Bauman of Joshua, Texas (Ms. Bauman is being reappointed);Elyse L. Lieberman, Ph.D. of Liberty Hill, Texas (Ms. Lieberman is being reappointed);Eric N. Lindsay of San Antonio, Texas (Mr. Lindsay is being reappointed);Kristie L. Orr, Ph.D. of College Station, Texas (Ms. Orr is being reappointed);Dylan M. Rafaty of Plano, Texas (Mr. Rafaty is being reappointed);Kristopher “Kris” Workman of Adkins, Texas (Mr. Workman is being reappointed).

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Governor

Appointments

Governor appoints April Pollreisz to the Rehabilitation Council of Texas

Appointments for March 1, 2021Appointed to the Rehabilitation Council of Texas, for a term to expire October 29, 2021, April Pollreisz of Amarillo, Texas (replacing Colton J. Read of New Braunfels, who resigned).

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Governor

Notices

Executive Order GA-34: Allowing Texas businesses to reopen, but maintaining limitations for nursing homes, state supported living centers, assisted living facilities, and long-term care facilities

OVERVIEW Executive Order GA-34, which authorizes the re-opening of Texas businesses, includes the following relevant provision:Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities should follow guidance from the Texas Health and Human Services Commission (HHSC) regarding visitations, and should follow infection control policies and practices set forth by HHSC including minimizing the movement of staff between facilities whenever possible.BACKGROUND AND JUSTIFICATION Governor’s rationale for issuing Executive Order GA-34 is included in this week’s edition of the Texas Register (46 Tex Reg 1567). 

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Texas Health and Human Services Commission

Proposed Rules

Amending 26 TAC §556.2 to update certain definitions related to rules governing nurse aides

CHAPTER 556. NURSE AIDES26 TAC §556.2OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §556.2, concerning Definitions. The proposed amendment to §556.2 adds definitions for “classroom training,” “clinical training,” “infection control,” and “personal protective equipment,” and amends the definitions for “employee misconduct registry,” “nurse aide registry,” and “informal review.”BACKGROUND AND JUSTIFICATION The purpose of the proposal is to allow a NATCEP provider to offer certain components of required training online in a virtual classroom location. A NATCEP is a program approved by HHSC to train and evaluate an individual’s ability to work as a nurse aide in a nursing facility. Currently, all NATCEP training is provided in a classroom and clinical setting.This program initiative is a response to a critical shortage in trained nurse aides in nursing homes. External stakeholders, such as Texas Health Care Association and Leading Age, have requested that HHSC allow NATCEP providers to offer online training opportunities for portions of the NATCEP classroom curriculum. This option will increase the number of nurse aides qualified for employment in a nursing facility.Due to the challenges presented by the COVID-19 pandemic and the need for greater awareness and emphasis on infection control, HHSC is also proposing NATCEP providers increase infection control training and continuing education requirements for nurse aides.

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Texas Health and Human Services Commission

Proposed Rules

Amending 26 TAC §556.3 to standardize requirements for the Nurse Aide Training and Competency Evaluation Program

CHAPTER 556. NURSE AIDES26 TAC §556.3OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §556.3, concerning Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements. The proposed amendment to §556.3 standardizes the minimum number of hours of training required to be provided by a NATCEP to a trainee by deleting obsolete language, allows for certain hours to be provided online with security and identification verification requirements, requires eight hours of infection control that include training with personal protective equipment (PPE) before a trainee has any direct contact with a resident, and requires a NATCEP to maintain records of training and make these available to HHSC. The proposed amendment to §556.3(e)(3) updates the civil money penalty of not less than $10,697 to align with current Centers for Medicare and Medicaid Services requirements.BACKGROUND AND JUSTIFICATION The purpose of the proposal is to allow a NATCEP provider to offer certain components of required training online in a virtual classroom location. A NATCEP is a program approved by HHSC to train and evaluate an individual’s ability to work as a nurse aide in a nursing facility. Currently, all NATCEP training is provided in a classroom and clinical setting.This program initiative is a response to a critical shortage in trained nurse aides in nursing homes. External stakeholders, such as Texas Health Care Association and Leading Age, have requested that HHSC allow NATCEP providers to offer online training opportunities for portions of the NATCEP classroom curriculum. This option will increase the number of nurse aides qualified for employment in a nursing facility.Due to the challenges presented by the COVID-19 pandemic and the need for greater awareness and emphasis on infection control, HHSC is also proposing NATCEP providers increase infection control training and continuing education requirements for nurse aides.

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Texas Health and Human Services Commission

Proposed Rules

Amending 26 TAC §556.6 to update procedures for the administration of the nurse aide competency evaluation

CHAPTER 556. NURSE AIDES26 TAC §556.6OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §556.6, concerning Competency Evaluation Requirements. The proposed amendment to §556.6 allows only HHSC, or an entity HHSC approves, to provide a competency evaluation, which must be administered by a skills examiner at an approved evaluation site and deletes the requirements that a NATCEP must provide a facility to administer a competency evaluation and administer a competency evaluation to other eligible trainees from another NATCEP.BACKGROUND AND JUSTIFICATION The purpose of the proposal is to allow a NATCEP provider to offer certain components of required training online in a virtual classroom location. A NATCEP is a program approved by HHSC to train and evaluate an individual’s ability to work as a nurse aide in a nursing facility. Currently, all NATCEP training is provided in a classroom and clinical setting.This program initiative is a response to a critical shortage in trained nurse aides in nursing homes. External stakeholders, such as Texas Health Care Association and Leading Age, have requested that HHSC allow NATCEP providers to offer online training opportunities for portions of the NATCEP classroom curriculum. This option will increase the number of nurse aides qualified for employment in a nursing facility.Due to the challenges presented by the COVID-19 pandemic and the need for greater awareness and emphasis on infection control, HHSC is also proposing NATCEP providers increase infection control training and continuing education requirements for nurse aides.

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Texas Health and Human Services Commission

Proposed Rules

Amending 26 TAC §556.9 to require that nurse aides complete annual training on infection control and PPE

CHAPTER 556. NURSE AIDES26 TAC §556.9OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §556.9, concerning Nurse Aide Registry and Renewal.The proposed amendment to §556.9 adds the requirement that a nurse aide must complete an HHSC course in infection control and PPE every year.BACKGROUND AND JUSTIFICATION The purpose of the proposal is to allow a NATCEP provider to offer certain components of required training online in a virtual classroom location. A NATCEP is a program approved by HHSC to train and evaluate an individual’s ability to work as a nurse aide in a nursing facility. Currently, all NATCEP training is provided in a classroom and clinical setting.This program initiative is a response to a critical shortage in trained nurse aides in nursing homes. External stakeholders, such as Texas Health Care Association and Leading Age, have requested that HHSC allow NATCEP providers to offer online training opportunities for portions of the NATCEP classroom curriculum. This option will increase the number of nurse aides qualified for employment in a nursing facility.Due to the challenges presented by the COVID-19 pandemic and the need for greater awareness and emphasis on infection control, HHSC is also proposing NATCEP providers increase infection control training and continuing education requirements for nurse aides.

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Texas Health and Human Services Commission

Withdrawn Rule

Withdrawing 26 TAC §339.101, which enabled the provision of essential services to individuals with intellectual and developmental disabilities during the COVID-19 crisis

CHAPTER 339. EMERGENCY RULE RELATED TO A STATE FACILITY, LOCAL INTELLECTUAL AND DEVELOPMENTAL DISABILITY AUTHORITY, LOCAL MENTAL HEALTH AUTHORITY, AND LOCAL BEHAVIORAL HEALTH AUTHORITYSUBCHAPTER A. COVID-19 EMERGENCY RULE26 TAC §339.101OVERVIEWThe Health and Human Services Commission withdraws the emergency adoption of the new §339.101, Subchapter A, which appeared in the October 2, 2020, issue of the Texas Register (45 TexReg 6832).CONTENT OF WITHDRAWN RULE The rule allowed individuals additional time to request certain reviews conducted by a local intellectual and developmental disability authority (LIDDA) and administrative hearings conducted by HHSC, and to take action to comply with certain accountability requirements. The rule also allowed a LIDDA or state facility more time to submit to HHSC an individual’s request for an administrative hearing. The rule allowed a meeting between a service coordinator and an individual to be conducted by telephone or videoconferencing, rather than face-to-face, and allowed a visit to community living options to be conducted virtually rather than in-person. The rule changes the requirement that a LIDDA withdraw an offer of Home and Community-based Services Program services for certain reasons to a requirement that the LIDDA not withdraw an offer, or obtain HHSC’s approval before withdrawing an offer. The rule allowed additional time for a LIDDA to complete certain activities after the LIDDA is notified of changes to an individual’s level of need (LON) and additional time to notify HHSC if the LIDDA is unable to complete the activities. The rule allowed a LIDDA to assess an individual by telecommunication after the LIDDA is notified by HHSC of changes to an individual’s LON. The rule also allowed a LIDDA more time to submit a plan of correction to HHSC after a review exit conference. The rule permits HHSC to implement the waivers the Centers for Medicare and Medicaid Services granted to Texas under Section 1135 of the Social Security Act concerning the preadmission screening and resident review (PASRR) process. The rule requires a nursing facility to submit each new admission as an exempted hospital discharge, which gives the LIDDA, local mental health authority (LMHA), or local behavioral health authority (LBHA) additional time to do a PASRR evaluation (PE), if one is required. The rule also permits a LIDDA, LMHA, or LBHA to conduct PEs and resident reviews and a habilitation coordinator to provide habilitation coordination by telephone or videoconferencing, rather than face-to-face.

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Texas Health and Human Services Commission

Adopted Rules

New 1 TAC §353.1309 and §353.1311, updating requirements for compensation of physician and professional services by Medicaid MCOs

CHAPTER 353. MEDICAID MANAGED CARESUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES1 TAC §353.1309, §353.1311OVERVIEWThe Texas Health and Human Services Commission (HHSC) adopts new §353.1309, concerning Texas Incentives for Physicians and Professional Services; and new §353.1311, concerning Quality Metrics for the Texas Incentives for Physician and Professional Services Program. New §353.1309 and §353.1311 are adopted with changes to the proposed text as published in the December 25, 2020, issue of the Texas Register (45 TexReg 9367). The text of the rules will be republished.BACKGROUND AND JUSTIFICATION The purpose of the new rules is to describe the circumstances under which HHSC will direct a Medicaid managed care organization (MCO) to provide a uniform per member per month payment, certain incentive payments, and a uniform percentage rate increase to physician groups in the MCO’s network in a participating service delivery area (SDA) for the provision of physician and professional services. The rules also describe the methodology used by HHSC to determine the amounts of the payments or rate increase.

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Texas State Board of Pharmacy

Adopted Rules

Amending 22 TAC §295.13 to update notification requirements associated with the issuance of certain drugs

CHAPTER 295. PHARMACISTS22 TAC §295.13The Texas State Board of Pharmacy adopts amendments to §295.13, concerning Drug Therapy Management by a Pharmacist under Written Protocol of a Physician. These amendments are adopted without changes to the proposed text as published in the December 11, 2020, issue of the Texas Register (45 TexReg 8822). The rule will not be republished.The amendments update the notification requirements for a pharmacist who signs a prescription for a dangerous drug pursuant to a written protocol and corrects grammatical errors.

Texas State Board of Pharmacy

Adopted Rules

Amending 22 TAC §315.15 to clarify a pharmacist’s duty to consult the Prescription Monitoring Program database before dispensing certain drugs

CHAPTER 315. CONTROLLED SUBSTANCES22 TAC §315.15The Texas State Board of Pharmacy adopts amendments to 22 TAC §315.15, concerning Access Requirements. These amendments are adopted without changes to the proposed text as published in the December 11, 2020, issue of the Texas Register (45 TexReg 8825). The rule will not be republished.The amendments clarify that the duty to consult the Prescription Monitoring Program database before dispensing an opioid, benzodiazepine, barbiturate, or carisoprodol is limited to outpatient prescriptions.

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Texas Health and Human Services Commission

Adopted Rules

New 26 TAC §§280.1, 280.3 and 280.5, establishing the Pediatric Tele-Connectivity Resource Program

CHAPTER 280. PEDIATRIC TELECONNECTIVITY RESOURCE PROGRAM FOR RURAL TEXAS26 TAC §§280.1, 280.3, 280.5OVERVIEWThe Texas Health and Human Services Commission (HHSC) adopts new §280.1, concerning Purpose; §280.3, concerning Definitions; and §280.5, concerning Grant Program Administration. New §§280.1, 280.3, and 280.5 are adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 8998), and therefore will not be republished.BACKGROUND AND JUSTIFICATION The new sections implement Texas Government Code, Chapter 541, added by House Bill (H.B.) 1697, 85th Legislature, Regular Session, 2017. Chapter 541 directs HHSC to establish a pediatric tele-connectivity resource program for rural Texas to award grants to nonurban health care facilities to connect the facilities with pediatric specialists and pediatric subspecialists who provide telemedicine services. Rider 94 of the 2020-21 General Appropriations Act (H.B. 1, 86th Legislature, Regular Session, 2019, Article II, Special Provisions) appropriates funds to HHSC to implement Chapter 541.The Pediatric Tele-Connectivity Resource Program for Rural Texas allows HHSC to provide financial assistance to enable eligible, nonurban health care facilities to connect with pediatric specialists and pediatric subspecialists who provide telemedicine services and to cover related expenses, including necessary equipment.

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Texas Medical Board

Emergency Rule

Amending 22 TAC §174.5 to allow physicians to issue prescription refills for certain chronic pain patients using telemedicine during the COVID-19 pandemic

CHAPTER 174. TELEMEDICINESUBCHAPTER A. TELEMEDICINE22 TAC §174.5OVERVIEWThe Texas Medical Board (Board) adopts, on an emergency basis, amendments to 22 TAC §174.5, effective March 3, 2021 at 12:01 a.m.The emergency amendment allows physicians to utilize telemedicine to issue refill prescriptions for scheduled medications to established chronic pain patients, if the physician has, within the past 90 days, seen a patient in-person or via a telemedicine visit using two-way audio and video communication.BACKGROUND AND JUSTIFICATIONOn March 13, 2020, the Governor of Texas certified COVID-19 as posing an imminent threat of disaster to the public health and safety and declared a state of disaster in all counties of Texas. On March 19, 2020, the Texas Governor issued a waiver suspending the strict enforcement of §174.5(e)(2)(A) which generally prohibits the utilization of telemedicine to prescribe scheduled drugs for the treatment of chronic pain. The waiver was issued in order to protect public health and curb the spread of COVID-19 by providing patients access to schedule drugs needed to ensure on-going treatment of chronic pain and avoid potential adverse consequences associated with the abrupt cessation of pain medication. On December 29, 2020, the Board adopted, on an emergency basis, amendments to 22 TAC §174.5. This rule is set to expire at 11:59 p.m. on March 2, 2021.Therefore, the emergency amendment to §174.5(e) is immediately necessary to help the state’s physicians, physician assistants and other health care professionals continue to mitigate the risk of exposure to COVID-19 and provide necessary medical services to related to issuance of prescriptions including controlled substances for patients. Pursuant to the Governor’s declaration of disaster issued on March 13, 2020, related to COVID-19, physicians can continue to provide telephone refills for prescriptions for established patients after having an in-person or two audio and video communications telemedicine medical services within the last 90 days. This waiver and emergency rule includes allowing a physician to issue a prescription for the treatment of chronic pain with scheduled medications.

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Texas Board of Nursing

Emergency Rule

Renewing emergency amendments to 22 TAC §217.24 to allow the prescription of controlled substances for certain existing patients using telemedicine during the COVID-19 pandemic

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE22 TAC §217.24OVERVIEWThe Texas Board of Nursing (Board) renews emergency amendments to §217.24, relating to Telemedicine Medical Service Prescriptions, pursuant to a finding of imminent peril to the public health, safety, and welfare, which requires adoption in fewer than thirty (30) days’ notice, as authorized by Tex. Gov’t. Code §2001.034.SUMMARY OF CHANGES Under the emergency amendments, an APRN may treat chronic pain with scheduled drugs through use of telemedicine medical services if a patient is an established chronic pain patient of the APRN, is seeking a telephone refill of an existing prescription, and the APRN determines that the telemedicine treatment is needed due to the COVID-19 pandemic. Further, the medical records must document the exception and the reason that a telemedicine visit was conducted instead of an in-person visit. The APRN must exercise appropriate professional judgment in determining whether to utilize telemedicine medical services for the treatment of chronic pain with controlled substances. The emergency amendments will only apply to those APRNs whose delegating physicians agree to permit them to issue re-fills for these patients, and the services provided are limited to refills of controlled substances in Schedules III through V. Finally, these emergency amendments will only be in effect for a period of 60 days or the duration of the time period that the Governor’s disaster declaration of March 13, 2020 in response to the COVID-19 pandemic is in effect, whichever is shorter.BACKGROUND AND JUSTIFICATION The renewal of emergency amendments to §217.24(e)(1) is immediately necessary to allow APRNs to continue to provide necessary treatment to established patients with chronic pain while mitigating the risk of exposure to COVID-19. 

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Texas Health and Human Services Commission

Emergency Rule

New 26 TAC §339.101, enabling the provision of essential services to individuals with intellectual and developmental disabilities during the COVID-19 pandemic

CHAPTER 339. EMERGENCY RULE RELATED TO A STATE FACILITY, LOCAL INTELLECTUAL AND DEVELOPMENTAL DISABILITY AUTHORITY, LOCAL MENTAL HEALTH AUTHORITY, AND LOCAL BEHAVIORAL HEALTH AUTHORITYSUBCHAPTER A. COVID-19 EMERGENCY RULE26 TAC §339.101OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code (TAC), new Chapter 339, Subchapter A, §339.101, concerning an emergency rule in response to COVID-19 in order to ensure essential services are provided to individuals with intellectual and developmental disabilities (IDD). To facilitate this goal, HHSC is adopting a new emergency rule to temporarily change requirements in the following rules:  40 TAC §§: ⁃ 2.46(e)(3), 2.105(f)(1), ⁃ 2.105(f)(1),  ⁃ 2.109(e)(3),  ⁃ 2.274(a)(2)(B),  ⁃ 2.556(d)(1),  ⁃ 4.156(a),  ⁃ 4.156(e),  ⁃ 9.158(f),  ⁃ 9.161(i)(1) and (2),  ⁃ 9.161(i)(1)(A), and 9.582(c);        26 TAC §§:  ⁃ 303.302(a)(2)(A)(ii),  ⁃ 303.102(46) and (54),  ⁃ 303.601(b)(7).BACKGROUND AND JUSTIFICATIONAs authorized by Texas Government Code §2001.034, the Commission 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 emergency rule regarding Temporary Changes to Requirements.

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