Texas Register March 18, 2022 Volume: 47 Number: 11

Texas Register Table of Contents

1 Health and Human Services Commission
2 Texas Medical Board
- - 2.0.1 Proposed Rules Re:
    - 2.0.1.1 Amending 22 TAC §173.3 to delineate events that must be contained in a physician’s profile.
3 Texas State Board of Pharmacy
- - 3.0.1 Proposed Rules Re:
    - 3.0.1.1 Amending 22 TAC §281.66 to specify the number of continuing education and internship hours required for reinstatement of a license to practice pharmacy.
    - 3.0.1.2 Amending 22 TAC §291.121 to remove a prohibition against duplicating drugs stored in emergency medication kits.
  - 3.0.2 Adopted Rule Reviews
    - 3.0.2.1 Reviewing Chapter 291, (§§291.51 – 291.55), concerning Pharmacies (Nuclear Pharmacy (Class B)) and Chapter 309, (§§309.1 – 309.8), concerning Substitution of Drug Products.
    - 3.0.2.2 Reviewing Chapter 305, (§305.1 and §305.2), concerning Educational Requirements.
4 Department of Aging and Disability Services
- - 4.0.1 Proposed Rules Re:
    - 4.0.1.1 Repealing 40 TAC §§30.2, 30.4, 30.10, 30.12, 30.14, 30.16, 30.18, 30.20, 30.30, 30.34, 30.36, 30.40, 30.50, 30.52, 30.54, 30.60, 30.62, 30.90, 30.92, 30.100 to allow HHSC to provide new rules governing the Medicaid Hospice Program.
  - 4.0.2 Adopted Rules Re:
    - 4.0.2.1 Repealing 40 TAC §§7.101 – 7.110 to reflect the move of the state supported living centers from the Department of Aging and Disability Services to HHSC.
5 Texas Board of Chiropractic Examiners
- - 5.0.1 Adopted Rules Re:
6 Department of State Health Services
- - 6.0.1 Adopted Rules Re:
    - 6.0.1.1 Repealing 25 TAC §§417.101 – 417.110 to reflect the move of the state hospitals from the Department of State Health Services to HHSC.
  - 6.0.2 In Addition Re:

Health and Human Services Commission

Proposed Rules Re:

Amending 1 TAC §§353.1302, 353.1304, 353.1306, 353.1307, 353.1309, 353.1311, 353.1315, 353.1317, 353.1320, 353.1322 to update delivery system and provider payment initiatives in accordance with requirements imposed by the Centers for Medicare and Medicaid Services (CMS).

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES
1 TAC §§353.1302, 353.1304, 353.1306, 353.1307, 353.1309, 353.1311, 353.1315, 353.1317, 353.1320, 353.1322

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.1302, concerning Quality Incentive Payment Program for Nursing Facilities on or after September 1, 2019; §353.1304, concerning Quality Metrics for the Quality Incentive Payment Program for Nursing Facilities on or after September 1, 2019; §353.1306, concerning Comprehensive Hospital Increase Reimbursement Program for program periods on or after September 1, 2021; §353.1307, concerning Quality Metrics and Required Reporting Used to Evaluate the Success of the Comprehensive Hospital Increase Reimbursement Program; §353.1309, concerning Texas Incentives for Physicians and Professional Services; §353.1311, concerning Quality Metrics for the Texas Incentives for Physicians and Professional Services Program; §353.1315, concerning Rural Access to Primary and Preventive Services Program; §353.1317, concerning Quality Metrics for Rural Access to Primary and Preventive Services Program; §353.1320, concerning Directed Payment Program for Behavioral Health Services; and §353.1322, concerning Quality Metrics for the Directed Payment Program for Behavioral Health Services, in Texas Administration Code Title 1, Part 15, Chapter 353, Subchapter O.

BACKGROUND AND JUSTIFICATION

The proposal is necessary to comply with approval requirements imposed by the Centers for Medicare and Medicaid Services (CMS), which required the Texas Health and Human Services Commission (HHSC) to make modifications related to proposed state-directed payment programs (DPPs) for state fiscal year 2022 and after.

Texas has pursued approval of five DPPs: the Quality Incentive Payment Program (QIPP), the Comprehensive Hospital Increased Reimbursement Program (CHIRP), the Texas Incentives for Physicians and Professional Services program (TIPPS), the Rural Access to Primary and Preventive Services program (RAPPS), and the Directed Payment Program for Behavioral Health Services (DPP BHS) for state fiscal year 2022. In March 2021, in accordance with 42 CFR 438.6(c) and the Special Terms and Conditions (STCs) of the January 15, 2021, 1115 Waiver, Texas submitted “pre-prints” for CMS review and approval. The STCs were drafted and agreed to by Texas and CMS to govern the framework for approval of DPPs, with the clear intention to have an approved program(s) as the ultimate result. Based upon these STCs, Texas expected that CMS would participate in a collaborative process designed to work through and approve each program individually.

On August 18, 2021, CMS and Texas met for the first time in compliance with STC 34. During the call, CMS stated that the DPPs were not approvable, specifically noting the aggregate size of the proposed programs and CMS’s purported belief that the amounts proposed were not actuarially sound. Texas requested a specific list of modifications required for each proposed DPP that would result in an approval. On August 20, 2021, CMS sent Texas a list of 19 issues, which can be grouped into five topics, and requested modifications for each program. HHSC and CMS have met every two business days since August 20, 2021, to work towards a resolution. The two entities have exchanged multiple rounds of written modifications, questions, and responses. The written exchanges can be found posted to the HHSC website at: https://www.hhs.texas.gov/providers/medicaid-supplemental-payment-directed-payment-programs/directed-payment-programs.

In November 2021, HHSC and CMS reached an agreement on four identified topic areas, but rule amendments are necessary to reflect those agreements. Without the agreed changes, CMS will not approve the DPPs proposed by Texas, and the programs will either cease to operate or not be implemented. A summary of the topics and the agreed modifications by HHSC are identified below.

Reconciliation

QIPP, TIPPS, RAPPS, and DPP BHS each included at least one component wherein the component payments would be allocated on an interim basis to providers based upon historical data, with a planned reconciliation performed to actual data to determine final payments at the end of the program year. In each case, the reconciliation was only triggered if a statistically significant percentage deviation between historical to actual data occurred. Otherwise, the interim payments would become final. CMS objected to this procedure and required the state to eliminate it. To advance the program approvals and work collaboratively with CMS, HHSC agreed to remove the triggering threshold and conduct the reconciliation at the end of the year.

Program Size

CHIRP payments were initially proposed to allow providers to receive average commercial incentive award (ACIA) rate increases up to their individual average commercial reimbursement (ACR) gap amounts. CMS stated that they believed that the resulting proposed program size and payments to providers on a class basis were not reasonable and attainable. To advance the program approvals and work collaboratively with CMS, Texas agreed to cap ACIA increases so a class of providers could receive in aggregate only 90 percent of the classes’ ACR gap amount.

Quality Improvement Measures

CMS stated that they believed that some quality measures were not outcome measures. They did not think Texas should use these measures to determine pay-for-performance and that, in some cases, the achievement requirements did not require providers to demonstrate continual improvement. Texas agreed to modify all program proposals, except for QIPP, to advance the program approvals and work collaboratively with CMS. These modifications pay all components as a uniform rate or payment increase, rather than considering them pay-for-performance. Texas also agreed to make modifications to achievement requirements in QIPP. Therefore, quality measure data submission would be considered a condition of participation for several components in the various programs.

Evaluation

CMS stated that they believed evaluations of the programs should isolate exclusively quality goal advancement for Medicaid managed care beneficiaries and not all Medicaid beneficiaries. CMS also required other modifications to the evaluations to ensure that the program evaluations were sufficiently detailed. Texas agreed to the required modifications to advance the program approvals and work collaboratively with CMS.

Non-Federal Share

CMS stated that they believed that some sources of local funds may not be permissible. This topic is unresolved, but the administrative rules that govern the DPPs are not impacted by this matter.

Additionally, the rules contain some modifications to appropriately align the rules with HHSC operational considerations. The rule amendments eliminate a potential mid-year enrollment process for RAPPS and DPP BHS. A program period is a 12-month rating period, and a mid-year enrollment is not feasible.

DPP BHS rules are also amended to clarify the eligible providers for the Program Period from September 1, 2021, through August 31, 2022, and eligible providers for Program Periods on or after September 1, 2022.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §353.1302(e) provides a reporting requirement for all quality data denoted in subsection (g) of this section and clarifies failure to meet any condition of participation will result in removal of the provider from the program and recoupment of all funds previously paid during the program period.
The proposed amendment to §353.1302(g) deletes the triggering threshold of 18 percent, provides the reconciliation will occur within 120 days after the last day of the program period, and provides the monthly payments to nursing facilities (NFs) will be triggered by the achievement of the performance requirements as described in §353.1304 of this subchapter or a uniform rate increase for which a NF must report quality data as described in §353.1304 of the subchapter as a condition of participation in the program.
The proposed amendment to §353.1302(h) provides the distribution of QIPP funds as a uniform rate increase will be equal to the total value of Component One for the Nursing Facility divided by twelve.
Proposed new §353.1304(h) provides alternate measures may be substituted for proposed or adopted measures as outlined in the subchapter, if required by CMS for federal approval.
The proposed amendment to §353.1306(c) provides that all participating hospitals must submit specific data to calculate the ACR gap unless the hospitals opt out of the optional program component. The proposed amendment also provides that hospitals are required to report the required data in subparagraph (B) of the subsection within four months of CMS approval, if the hospital did not report the required data in the program application. The proposed amendment also clarifies failure to meet any condition of participation will result in removal of the provider from the program and recoupment of all funds previously paid during the program period.
The proposed amendment to §353.1306(g) provides, in terms of eligibility, the maximum ACIA payments will be equal to 90 percent of the total estimated ACR gap for the class, including hospitals not participating in ACIA.
The proposed amendment to §353.1307(d) provides that hospitals must report all eligible quality metrics as a condition of participation, including data stratified by payor type.
The proposed amendment to §353.1307(e) provides that hospitals must report semiannually unless otherwise specified by the metric.
The proposed amendment to §353.1309(e) provides a reporting requirement for all quality data denoted in §353.1311 and clarifies failure to meet any condition of participation will result in removal of the provider from the program and recoupment of all funds previously paid during the program period.
The proposed amendment to §353.1309(g) provides monthly payments to health related institution and indirect medical education physician groups will be a uniform rate increase; deletes the triggering threshold of 18 percent, and provides the reconciliation will occur within 120 days after the last day of the program period.
The proposed amendment to §353.1309(h) deletes quality metric language and explanations of the calculations as these are no longer warranted.
The proposed amendment to §353.1311(b) deletes definitions for “Baseline,” “Benchmark,” and “Measurement Period.”
The proposed amendment to §353.1311(d) deletes performance measure language and replaces it with quality metric requirements and deletes the current language providing that achievement of performance measures will trigger payments.
Proposed new §353.1311(g) provides HHSC will evaluate the success of the program based on a review of reported metrics; provides HHSC will publish interim findings; and provides HHSC will publish a final evaluation report within 270 days of the conclusion of the program period.
The proposed amendment to §353.1315(b) modifies the definition of “Program period” to delete language that currently allows a Rural health clinic (RHC) to apply to participate from March 1 until August 31 of the same program period.
The proposed amendment to §353.1315(f) provides entities are required to report all quality data denoted as required as a condition of participation in subsection (h) of the section and provides that failure to meet any condition of participation will result in removal of the provider from the program and recoupment of all funds previously paid during the program period.
The proposed amendment to §353.1315(h) deletes the current 10 percent reconciliation process; provides that providers must report quality data for Components One and Two as described in §353.1317.
The proposed amendment to §353.1315(i) deletes the current redistribution of non-dispersed funds process due to failure of one or more RHCs to meet performance requirements.
The proposed amendment to §353.1317(d) deletes the performance requirement language and replaces it with quality metric requirements; deletes the current language that a payment will be triggered by the achievement of performance measures; and provides an RHC must report all quality metrics as a condition of participation in the program.
Proposed new §353.1317(h) provides HHSC will evaluate the success of the program based on a review of reported metrics; provides HHSC will publish interim findings; and provides HHSC will publish a final evaluation report within 270 days of the conclusion of the program.
The proposed amendment to §353.1320(a) deletes the terminology pertaining to community mental health centers (CMHC) and replaces it with behavioral health providers.
The proposed amendment to §353.1320(b) adds a definition for “local behavioral health authority (LBHA),” provides a definition for “providers” based on the applicable program year, and modifies the definition of “program period” to delete language allowing participation in a modified program period.
The proposed amendment to §353.1320(e) provides the provider is required to report all quality data denoted as required as a condition of participation and provides that failure to meet any conditions of participation will result in removal of the provider from the program and recoupment of all funds previously paid during the program period.
The proposed amendment to §353.1320(h) clarifies the provider must provide at least one Medicaid service to a Medicaid managed care client; provides the monthly payment will be paid as a uniform rate increase for Component One and Two; provides that the reconciliation will occur 120 days after the last day of the program period based on actual utilization; deletes the 10 percent trigger threshold for the reconciliation; and provides that providers must report quality data as described in §353.1322.
The proposed amendment to §353.1322(d) deletes the performance language and replaces it with quality metric requirements; deletes language pertaining to achievement of performance measures; and provides participating providers must report data stratified by payor type.
Proposed new §353.1322(g) provides HHSC will evaluate the success of the program based on a statewide review of reported metrics; provides HHSC will publish interim findings; and provides HHSC will publish a final evaluation report within 270 days of the conclusion of the program.
Additional edits are made throughout the rule for consistency and clarity.

New 26 TAC §266.101, §266.103, providing an overview of the Medicaid Hospice Program requirements.

CHAPTER 266. MEDICAID HOSPICE PROGRAM
SUBCHAPTER A. INTRODUCTION
26 TAC §266.101, §266.103

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in the Texas Administrative Code (TAC), Title 26, Part 1, new Chapter 266, Medicaid Hospice Program, Subchapters A – C, composed of §§266.101, 266.103, 266.201, 266.203, 266.205, 266.207, 266.209, 266.211, 266.213, 266.215, 266.217, 266.219, 266.221, 266.223, 266.225, 266.227, 266.301, 266.303, 266.305, 266.307, 266.309, and 266.311.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to update and relocate the Medicaid Hospice Program rules from TAC, Title 40 (40 TAC), Chapter 30, to TAC, Title 26 (26 TAC), Chapter 266 as part of the consolidation of HHSC’s rules in 26 TAC. The repeal of the rules in 40 TAC, Chapter 30 is proposed elsewhere in this issue of the Texas Register.

Proposed new Chapter 266 will make HHSC’s Medicaid Hospice Program rules consistent with the federal Medicare hospice regulations, add definitions used in the chapter, include details of utilization review policy requirements, such as describing what the individualized plan of care must include, types of required documentation that a hospice must maintain, and specifics regarding the certification of terminal illness, and update standards to protect the health and safety of individuals receiving hospice care.

The proposed new rules in Chapter 266 incorporate the federal rate changes in Title 42, Code of Federal Regulations (42 CFR), Part 418, Subpart G, Payment for Hospice Care, that HHSC implemented on January 1, 2016. These changes allow providers to be paid at a higher rate during the first 60 days of routine home care and during the final seven days. Additionally, the proposed new rules create an annual aggregate cap and align it with the federal fiscal year. The proposed new rules also align hospice election periods to those in 42 CFR Part 418, Subpart B, Duration of hospice care coverage – Election periods.

The proposed new rules also include hospice documentation requirements, recoupment of payments, and the option to request an informal review of and appeal proposed recoupment.

The proposed new rules in Chapter 266 do not include the rules proposed for repeal in 40 TAC §30.2, concerning Purpose; 40 TAC §30.92, concerning Minimum Data Set Assessment; and 40 TAC 30.100, concerning Additional Requirements, because HHSC determined the rules to be either unnecessary or no longer applicable.

The proposed new rules also update agency names, replace references to the “initial period of care” with references to the “initial election period,” and replace references to “recipient” or “beneficiary” with references to “individual.”

SECTION-BY-SECTION SUMMARY

New Subchapter A, Introduction

Proposed new §266.101, Definitions, replaces 40 TAC §30.4. In addition, the proposed new rule adds definitions of “CFR – Code of Federal Regulations,” “CHC – continuous home care,” “CMS – Centers for Medicare and Medicaid Services”, “crisis,” “HHSC – Texas Health and Human Services Commission,” “IDT – interdisciplinary team,” “licensed vocational nurse,” “period of crisis,” “RN – registered nurse,” “SIA – service intensity add-on,” “skilled nursing care,” “social worker,” “TAC – Texas Administrative Code,” “TMHP – Texas Medicaid & Healthcare Partnership,” and “utilization review.” The proposed new rule also revises the definitions of “curative,” “physician,” and “social worker” for clarity. The proposed new rule deletes the definitions of “bereavement counseling,” “ICF/MR-RC,” and “palliative care” because these terms are not used in the chapter. The proposed new rule does not include a definition of “hospice” because having one definition for this term does not always reflect how the term is used in the chapter.
Proposed new §266.103, Submitting Written Information to HHSC, replaces 40 TAC §30.36, with changes to require a hospice to submit written information to HHSC in accordance with the instructions on the HHSC website.

New 26 TAC §§266.201, 266.203, 266.205, 266.207, 266.209, 266.211, 266.213, 266.215, 266.217, 266.219, 266.221, 266.223, 266.225, 266.227, describing utilization review policy requirements for the Medicaid Hospice Program.

CHAPTER 266. MEDICAID HOSPICE PROGRAM
SUBCHAPTER B. UTILIZATION REVIEW
26 TAC §§266.201, 266.203, 266.205, 266.207, 266.209, 266.211, 266.213, 266.215, 266.217, 266.219, 266.221, 266.223, 266.225, 266.227

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed new rules also include hospice documentation requirements, recoupment of payments, and the option to request an informal review of and appeal proposed recoupment.

SECTION-BY-SECTION SUMMARY

New Subchapter B, Utilization Review

Proposed new §266.201, Duration of Hospice Care Coverage: Election Periods, replaces 40 TAC §30.12. The proposed new rule permits an individual who is eligible for hospice to elect hospice for an initial 90-day period, a subsequent 90-day period, or an unlimited number of subsequent 60-day periods. Under the current rule, an eligible individual elects to receive hospice for one or more six-month periods. This change makes the election periods the same for Medicare and Medicaid hospice. To facilitate the transition from the old to the new election periods, the proposed new rule also states an individual receiving Medicaid hospice services on the date the rule becomes effective may continue receiving those services until the current election period expires. Any subsequent election period is a 60-day period under proposed new §266.201(a)(3).
Proposed new §266.203, Certification of Terminal Illness, replaces 40 TAC §30.14. The proposed new rule describes the requirements of a written and oral certification of terminal illness, the content and sources of certifications, and documentation and additional requirements. Subsection (a)(3) requires the hospice to submit the Physician Certification of Terminal Illness Form to the TMHP Long Term Care Online Portal. Subsection (b), regarding oral certification, requires a hospice to obtain a written certification before it submits a claim for payment. Subsection (c)(2) requires the physician narrative to include the individual-specific findings supporting the conclusion the individual is terminally ill. Subsection (f) describes the documentation requirements for an oral and written certification. For an election period after the subsequent 90-day election period, subsection (f)(2) requires the hospice record to include clearly labeled documentation of the face-to-face assessment. Proposed new §266.203 does not include the requirement in 40 TAC §30.14 that the hospice record includes the current minimum data set or level-of-need assessment if the individual receiving hospice services resides in a nursing facility or intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID). Proposed new §266.203 also does not include the requirement that the hospice provides the nursing facility or ICF/IID a copy of the documentation supporting the services provided by the hospice to an individual residing in the nursing facility or ICF/IID. These requirements are no longer part of the utilization review process. In addition, the proposed new §266.205(f) contains updated rules on record retention, including in an individual’s nursing facility or ICF/IID record.
Proposed new §266.205, Election of Hospice Care, replaces 40 TAC §30.16. Subsection (a) requires an individual to elect hospice by filing the Individual Election/Cancellation/Update Form with a particular hospice. Subsection (f) adds requirements for the hospice to retain copies of all election forms in the hospice record for the individual and the individual’s nursing facility or ICF/IID record, if applicable, and for hospice providers to meet the record retention requirements in 40 TAC Chapter 49 (relating to Contracting for Community Services). Subsection (g) requires the hospice to submit the Individual Election/Cancellation/Update form to the Texas Medicaid & Healthcare Partnership (TMHP) Long Term Care Online Portal.
Proposed new §266.207, Revoking the Election of Hospice Care, replaces 40 TAC §30.18. Subsection (b) requires an individual to file the Individual Election/Cancellation/Update Form with the hospice to revoke the election of hospice care. Subsection (e) requires the hospice to submit the Individual Election/Cancellation/Update Form to the TMHP Long Term Care Online Portal.
Proposed new §266.209, Requirements for Payments, replaces 40 TAC §30.50, Requirements for Reimbursement. HHSC decided it is clearer to use the term “Payments” in the title and new rule and made corresponding changes in the Provider Manual. The proposed new rule states that to be eligible for Medicaid hospice payment, the hospice must document that the services provided meet the eleven specific requirements described in the new rule.
Proposed new §266.211, Continuous Home Care (CHC), replaces 40 TAC §30.54(a)(1)-(7). The proposed new rule describes CHC as being care provided only during a “period of crisis” for a maximum of five consecutive days to maintain an individual at the individual’s place of residence. The term “period of crisis” is defined in the proposed new §266.101. Paragraph (2) requires skilled nursing care to be provided for the “identified crisis” and adds that skilled nursing care can be provided by either an RN or licensed vocational nurse employed by the hospice providing services and that, for an individual residing in a nursing facility, the skilled nursing care requirement is not met when facility staff provides skilled nursing care for the crisis. Paragraph (2) also requires skilled nursing care to include at least one of four listed nursing services. Paragraph (3) adds a requirement that the hospice document why the physician considers social work or chaplain services necessary to ameliorate the crisis and what these services accomplished during CHC. Paragraph (4) provides additional detail concerning what a signed physician’s order for skilled nursing care must include. Paragraph (5) adds two new requirements for the CHC plan of care. The first is that the plan of care must be updated when the individual’s condition changes. The second is that the plan of care must include a description of the specific crisis and how the hospice plans to resolve the crisis. Paragraph (5) specifically requires the plan of care to identify the services needed to meet the needs of both the individual and family. Paragraph (6) provides additional details about how the hospice must document the discussion of temporary alternate placement with the family or responsible party.
Proposed new §266.213, Extension of Continuous Home Care, replaces 40 TAC §30.54(a)(8)-(13). The proposed new rule describes the requirements for requesting an extension of CHC and the review conducted by HHSC. If the hospice believes the period of crisis will extend beyond five consecutive days, subsection (a) requires the hospice to discuss the temporary alternate placement available to meet the needs of the individual during the period of crisis and to document that discussion before the fifth day of the crisis. If the hospice believes the extension of CHC is necessary instead of alternate placement, subsection (a)(1) requires the hospice to fax a Request for CHC Extension Form to HHSC by the fourth day of the CHC period. Subsection (a)(2) describes the required content of the request for the CHC extension, including the required documentation, which is in the current rule. Subsection (c) states that HHSC reviews documentation faxed on or before the fourth consecutive day of the period of crisis within 16 work hours of receiving the documentation if it is sent in accordance with the instructions in subsection (a)(1) of the rule. Subsection (d) states that HHSC will not consider requests faxed after the fourth consecutive day of the period of crisis. Subsection (f) provides that HHSC will notify a hospice of its decision in writing, via fax, not later than the end of the fifth consecutive day of the period of crisis. If HHSC denies the request, subsection (g) of the rule provides that HHSC sends a notice of denial to the individual whose CHC the hospice was seeking to extend and informs the individual of the individual’s right to request a Medicaid fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules). Subsection (i) states that the approval of a CHC extension request is not an approval of the initial CHC period, nor an approval for the care provided during the extension period, and that HHSC will conduct a review of all paid CHC claims to determine compliance with eligibility requirements for the hospice payment. The proposed new rule does not include the provision currently in 40 TAC §30.54(a)(13) that permits a hospice to request reconsideration if the hospice does not agree with HHSC’s denial of the CHC extension.
Proposed new §266.215, Respite Care, replaces 40 TAC §30.54(b). However, 40 TAC §30.54(b) currently describes respite care as short-term inpatient care provided to the individual “at home” only when necessary to relieve the family members or other persons caring for the individual at home. Subsection (a) of the proposed rule describes respite care as short-term “inpatient care” provided to an individual only when necessary to relieve the family members or other persons caring for the individual at home. This change removes the erroneous suggestion that respite care is provided in the individual’s home.
Proposed new §266.217, Medicaid Hospice Payments and Limitations, replaces 40 TAC §30.60. HHSC made three major changes in this section to make the Medicaid hospice rules consistent with the federal Medicare hospice regulations. First, subsection (a)(1) creates two different rates for routine home care. This change results in a higher base payment rate for the first 60 days of hospice care and a reduced base payment rate for days 61 and over of hospice care. Subsection (a)(1) also describes how HHSC will determine the proper base payment rate when an individual is discharged and readmitted to hospice. Second, subsection (a)(2) creates a service intensity add-on (SIA) payment. This change will result in an add-on payment equal to the CHC hourly pay rate multiplied by the amount of direct patient care provided by an RN or social worker during the last 7 days of an individual’s life. Subsection (a)(2) also lists the documentation the hospice must submit to claim the SIA payment. Third, in subsection (d), HHSC creates an annual aggregate limitation on hospice payments. This change results in a limitation on the total Medicaid payments for hospice care that a hospice can receive each year. Subsection (d) describes the limitation and how it is calculated.
HHSC made several other changes in the proposed new §266.217. Subsection (b)(2) of the rule allows a hospice to be paid for physician services on the day of discharge if the physician provides direct patient services on that day. Subsection (b)(2) does not include the unnecessary language currently in 40 TAC §30.60 describing how Medicaid makes payments for non-hospice physician services. Subsection (b)(2) does not include language currently in 40 TAC §30.60 requiring the Medicaid hospice provider to inform physicians on how to bill for services to individuals because the Medicaid hospice program does not enforce this requirement. Subsection (c) clarifies the Medicaid payment limitations for inpatient care by adding that a day counts as an inpatient hospice care day only if it is a day on which the individual who has elected hospice care receives inpatient respite care or general inpatient care. The calculation of the limitations for inpatient care remains the same. Subsection (f) relates to pediatric concurrent care and is entirely new. This new provision states that an individual under 21 years of age who elects Medicaid hospice care may receive Medicaid services related to the treatment of the terminal illness, or a related condition, for which the hospice care was elected concurrently with the hospice care. Subsection (f) also states that the hospice is responsible for the palliative care related to the terminal illness or a related condition and not responsible for acute care services related to the treatment of the terminal illness or a related condition or for services unrelated to the terminal illness or related condition.
In addition, the proposed new §266.217 does not include several of the current provisions in 40 TAC §30.60 regarding Medicaid hospice-nursing facility per diem rates, Medicaid hospice-ICF/IID per diem rates, Medicaid payments on Medicare coinsurance for drugs and biologicals, and Medicaid payments for Medicare respite coinsurance. HHSC is proposing to address those provisions in proposed new §266.305, General Contracting Requirements. The proposed new provisions will also not include the current provisions in 40 TAC §30.60 regarding Medicaid time limitations for hospice payment and third-party liability for hospice services because those rules are covered in 26 TAC §554.801 and 1 TAC Chapter 354, Subchapter J.
Proposed new §266.219, Utilization Review and Control Activities Performed by HHSC, replaces 40 TAC §30.90. However, in the proposed new rule, HHSC does not include the current provision in 40 TAC §30.90(a), which describes HHSC’s on-site activities related to utilization review in nursing facilities receiving Medicaid payments through the hospice provider. HHSC does not conduct on-site activities related to utilization review. Proposed subsection (a) requires hospice staff to cooperate with HHSC staff during the utilization review of hospice services and the review of hospice clinical records. Subsection (b) requires the hospice to respond within 30 calendar days after HHSC makes a request for information. Subsection (c) states that HHSC staff review most claims for payment after they are paid and recoup any overpayments. Subsection (d) states that HHSC staff review claims for the SIA before paying the SIA.
Proposed new §266.221, Hospice Documentation Requirements, does not have an equivalent section in current 40 TAC Chapter 30. The proposed new rule describes different hospice documentation requirements. Subsection (a) describes the types of documentation required for each individual receiving Medicaid hospice services. Subsection (b) states the requirements for physician’s orders. Subsection (c) states the requirements for the plan of care. Subsection (d) states the requirements for a hospice to request payment on the day of discharge. Subsection (e) requires documentation to be clearly labeled, indicate what type of documentation it is, be legible to a reader other than the author, and be signed and dated.
Proposed new §266.223, Recoupment, describes the circumstances under which HHSC will propose to recoup funds paid to a hospice if the hospice has not complied with the requirements described in this chapter. The proposed new rule also states the percentage of the claim HHSC will propose to recoup for each type of violation. Subsection (b)(1) covers the recoupment amounts for violations discovered during hospice eligibility and level of service reviews. Subsection (b)(2) covers the recoupment amounts for violations discovered during CHC reviews. Subsection (d) states that HHSC will recoup the amount of any overpayment discovered.
Proposed new §266.225, Informal Review, describes the informal review process. Subsection (a) states that before HHSC issues a notice of proposed recoupment, HHSC provides the hospice with a description of the alleged rule violation warranting the proposed recoupment and the option to request an informal review to demonstrate that the hospice did not commit the alleged violation or to accept the proposed recoupment. Subsection (b) requires a hospice’s request for an informal review to be received by HHSC within 10 calendar days after the hospice received the description of the alleged violation and contain documentation that refutes the alleged violation. Subsection (c) states that HHSC conducts the informal review by reviewing the hospice’s written response and supporting evidence. Subsection (d) states that HHSC provides the hospice with official notice of the outcome of the informal review.
Proposed new §266.227, Review Decision and Notice, describes how HHSC informs the hospice of its final decision regarding recoupment. Subsection (a) states that HHSC issues a notice of proposed recoupment under 40 TAC §49.533(c) if HHSC upholds or modifies proposed recoupment after the informal review. Subsection (b) states that the notice of proposed recoupment includes a description of the alleged rule violation warranting the proposed recoupment, the amount of the proposed recoupment, HHSC’s decision to uphold or modify the proposed recoupment after an informal review, and the option for the hospice to accept the proposed recoupment or appeal the proposed recoupment as provided in 40 TAC §49.541.

New 26 TAC §§266.301, 266.303, 266.305, 266.307, 266.309, 266.311, detailing contracting requirements under the Medicaid Hospice Program.

CHAPTER 266. MEDICAID HOSPICE PROGRAM
SUBCHAPTER C. CONTRACTING REQUIREMENTS
26 TAC §§266.301, 266.303, 266.305, 266.307, 266.309, 266.311

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed new rules also include hospice documentation requirements, recoupment of payments, and the option to request an informal review of and appeal proposed recoupment.

SECTION-BY-SECTION SUMMARY

New Subchapter C, Contracting Requirements

Proposed new §266.301, Eligibility Requirements, replaces 40 TAC §30.10. The proposed new rule states the requirements an individual must meet to be eligible to elect hospice care under Medicaid. The proposed new rule does not include language currently in 40 TAC §30.10(a)(3) that requires an individual to have an identified need documented on a comprehensive assessment to be eligible for hospice care.
Proposed new §266.303, Change of the Designated Hospice, replaces 40 TAC §30.20. The proposed new rule describes the process for an individual or representative to change the hospice from which the individual receives hospice services, which is referred to in the rules as the “designated hospice.” In subsection (d), language was included to clarify that both the hospice from which the individual has received care and the hospice from which the individual plans to receive care must submit an Individual Election/Cancellation/Discharge Form. In addition, the reference to submitting the form to “Provider Claims Services” has been replaced with the “TMHP Long Term Care Online Portal.”
Proposed new §266.305, General Contracting Requirements, replaces portions of 40 TAC §30.30 and §30.60. Subsections (a), (b), and (c) contain the requirements formerly in 40 TAC §30.30(a), (b), and (c). Subsections (d), (e), (f), and (g) contain the requirements formerly in 40 TAC §30.60(c), (d), (f) and (g). The proposed new rule covers the requirements for contracting with HHSC to provide Medicaid hospice services.
Proposed new §266.307, Voluntary Termination of Hospice Contract, replaces 40 TAC §30.34. The proposed new rule covers the steps a Medicaid hospice provider must take to terminate its contract with HHSC. The proposed new rule replaces references to “DADS claims processor” with references to “the TMHP Long Term Care Online Portal.”
Proposed new §266.309, Condition of Participation””Physical Therapy, Occupational Therapy, and Speech-language Pathology, replaces 40 TAC §30.40. The proposed new rule covers the provision of physical therapy, occupational therapy, speech-language pathology, and lab services. The proposed new rule uses the language from 40 TAC §30.40 with no substantive changes.
Proposed new §266.311, Waiver Requirements for Nursing Services or Occupational, Physical, and Speech Therapies, replaces 40 TAC §30.52. The proposed new rule covers the Centers for Medicare and Medicaid Services (CMS) waiver for nursing services or occupational, physical, and speech therapies provided by a hospice located in a non-urbanized area. The proposed new rule uses the language from 40 TAC §30.52 with no substantive changes.

Adopted Rules Re:

Amending 1 TAC §355.8212 to redefine the classification criteria for a rural hospital and update the rural set-aside amount.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 11. TEXAS HEALTHCARE TRANSFORMATION AND QUALITY IMPROVEMENT PROGRAM REIMBURSEMENT
1 TAC §355.8212

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.8212, concerning Waiver Payments to Hospitals for Uncompensated Charity Care.

Section 355.8212 is adopted without changes to the proposed text as published in the December 24, 2021, issue of the Texas Register (46 Tex Reg 8861). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

Texas Health and Human Services Commission (HHSC) makes Uncompensated Care (UC) payments to qualifying hospitals that serve a large number of Medicaid and uninsured individuals. Attachment H of the 1115 Waiver establishes rules and guidelines for the State to claim federal matching funds for UC payments. This rulemaking amends the definitions of certain provider classes, describes a time frame during which the provider classes are classified into certain categories, and updates and clarifies other amendments.

House Bill (H.B.) 3301, 86th Legislature, allowed qualifying hospitals in low-population areas to enter into merger agreements, subject to receipt of a Certificate of Public Advantage (COPA). In 2019, COPAs were approved for two merger agreements. The mergers resulted in each of the merged entities being designated a Sole Community Hospital (SCH) by the federal Centers for Medicare and Medicaid Services (CMS). This SCH designation in turn resulted in each of the merged entities to be classified as rural hospitals under HHSC rules, significantly shifting the rural set-aside funds for Demonstration Year 10 (DY10).

As a result, HHSC is adopting revised §355.8212, which will redefine the classification criteria for a rural hospital and update the rural set-aside amount to address the large shift in funds by setting the rural set-aside to the maximum costs for demonstration year 10. For Demonstration year 11 and onward, the rural set-aside will be the lessor of demonstration year 10 costs or demonstration year 11 costs.

In Addition Re:

Public Notice – Texas State Plan Amendment to Allow Advance Telecommunications for Physicians’ and Dentists’ Services and Targeted Case Management for Individuals with Chronic Mental Illness

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan to allow the use of advance telecommunications for Physicians’ and Dentists’ Services and Targeted Case Management for individuals with Chronic Mental Illness under Title XIX of the Social Security Act. The proposed amendment is effective February 1, 2022.

BACKGROUND AND JUSTIFICATION

The purpose of this amendment, Transmittal Number 22-0005, seeks to ensure that Medicaid recipients, child health plan program enrollees, and other individuals receiving benefits under a public benefits program administered by HHSC, regardless of the delivery model, have the option to receive certain services using advanced telecommunications.

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).

Public Notice – Texas State Plan for Medical Assistance Amendment Effective April 1, 2022

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendment is effective April 1, 2022.

BACKGROUND AND JUSTIFICATION

The purpose of the amendment is to update the fee schedules in the current state plan by adjusting fees, rates, or charges for the following services:

Clinical Laboratory Services
Family Planning Services

Further detail on specific reimbursement rates and percentage changes is available on the HHSC Provider Finance website under the proposed effective date at: https://pfd.hhs.texas.gov/rate-packets.

A rate hearing was conducted online on February 14, 2022, at 1:00 p.m. Information about the proposed rate changes and the hearing was published in the February 4, 2022, issue of the Texas Register (47 TexReg 552). The notice of hearing can be found at http://www.sos.state.tx.us/texreg/index.shtml.

Interested parties may obtain additional information and/or a free copy of the proposed amendment by contacting Shaneqwea James, State Plan Policy Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; by telephone at (512) 487-3349; by facsimile at (512) 730-7472; or by e-mail at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposed amendment will be available for review at the local county offices of HHSC, (which were formerly the local offices of the Texas Department of Aging and Disability Services).

Texas Medical Board

Proposed Rules Re:

Amending 22 TAC §173.3 to delineate events that must be contained in a physician’s profile.

CHAPTER 173. PHYSICIAN PROFILES
22 TAC §173.3

OVERVIEW

The Texas Medical Board (Board) proposes amendments to 22 TAC §173.3, concerning Physician-Initiated Updates.

The proposed amendments to §173.3, relating to Physician-Initiated Updates specify events that must be reported by a licensed physician to the Board within 30 days after the event. Specifically, the proposed amendments add events required to be contained in the physician’s profile in accordance with §154.006 of the Act.

BACKGROUND AND JUSTIFICATION

Scott Freshour, General Counsel for the Texas Medical Board, has determined that, for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing these proposed amendments will be to increase transparency and public access to information required to be on a physician’s profile under the Medical Practice Act.

Texas State Board of Pharmacy

Proposed Rules Re:

Amending 22 TAC §281.66 to specify the number of continuing education and internship 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. The amendments, if adopted, 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. The amendments, if adopted, 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.

Adopted Rule Reviews

Reviewing Chapter 291, (§§291.51 – 291.55), concerning Pharmacies (Nuclear Pharmacy (Class B)) and Chapter 309, (§§309.1 – 309.8), concerning Substitution of Drug Products.

OVERVIEW

The Texas State Board of Pharmacy adopts the review of Chapter 291, (§§291.51 – 291.55), concerning Pharmacies (Nuclear Pharmacy (Class B)), Chapter 309, (§§309.1 – 309.8), concerning Substitution of Drug Products, pursuant to the Texas Government Code §2001.039, regarding Agency Review of Existing Rules. The proposed review was published in the December 24, 2021, issue of the Texas Register (46 Tex Reg 9064).

BACKGROUND AND JUSTIFICATION

The agency finds the reasons for adopting the rules contained in Chapter 291 and Chapter 309 continue to exist.

Reviewing Chapter 305, (§305.1 and §305.2), concerning Educational Requirements.

OVERVIEW

The Texas State Board of Pharmacy adopts the review of Chapter 305, (§305.1 and §305.2), concerning Educational Requirements, pursuant to the Texas Government Code §2001.039, regarding Agency Review of Existing Rules. The proposed review was published in the December 24, 2021, issue of the Texas Register (46 Tex Reg 9064).

BACKGROUND AND JUSTIFICATION

No comments were received.

The agency finds the reasons for adopting the rules contained in Chapter 305 no longer exist.

Department of Aging and Disability Services

Proposed Rules Re:

Repealing 40 TAC §§30.2, 30.4, 30.10, 30.12, 30.14, 30.16, 30.18, 30.20, 30.30, 30.34, 30.36, 30.40, 30.50, 30.52, 30.54, 30.60, 30.62, 30.90, 30.92, 30.100 to allow HHSC to provide new rules governing the Medicaid Hospice Program.

CHAPTER 30. MEDICAID HOSPICE PROGRAM
40 TAC §§30.2, 30.4, 30.10, 30.12, 30.14, 30.16, 30.18, 30.20, 30.30, 30.34, 30.36, 30.40, 30.50, 30.52, 30.54, 30.60, 30.62, 30.90, 30.92, 30.100

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC proposes the repeal of rules in the Texas Administrative Code (TAC), Title 40 (40 TAC), Part 1, Chapter 30, concerning Medicaid Hospice Program, consisting of §§30.2, 30.4, 30.10, 30.12, 30.14, 30.16, 30.18, 30.20, 30.30, 30.34, 30.36, 30.40, 30.50, 30.52, 30.54, 30.60, 30.62, 30.90, 30.92, and 30.100. HHSC proposes new rules in 26 TAC, Chapter 266, concerning Medicaid Hospice Program.

BACKGROUND AND JUSTIFICATION

The proposed repeal of 40 TAC Chapter 30 deletes rules of the former DADS from the TAC. HHSC will propose new rules governing the Medicaid Hospice Program in 26 TAC Chapter 266, elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §§30.2, 30.4, 30.10, 30.12, 30.14, 30.16, 30.18, 30.20, 30.30, 30.34, 30.36, 30.40, 30.50, 30.52, 30.54, 30.60, 30.62, 30.90, 30.92, and 30.100 allows new rules governing the Medicaid Hospice Program to be proposed in 26 TAC Chapter 266.

Adopted Rules Re:

Repealing 40 TAC §§7.101 – 7.110 to reflect the move of the state supported living centers from the Department of Aging and Disability Services to HHSC.

CHAPTER 7. DADS ADMINISTRATIVE RESPONSIBILITIES
SUBCHAPTER C. CHARGES FOR SERVICES IN STATE FACILITIES
40 TAC §§7.101 – 7.110

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts the repeal of §7.101, concerning Purpose; §7.102, concerning Application; §7.103, concerning Definitions; §7.104, concerning Fee Assessment and Notification of Charges; §7.105, concerning Accruing Charges; §7.106, concerning Appeal Process; §7.107, concerning Filing Notice of Lien; §7.108, concerning Exhibits; §7.109, concerning References; and §7.110, concerning Distribution.

The repeal of §§7.101 – 7.110 is adopted without changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6206). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The repeals reflect the move of the state supported living centers from the Department of Aging and Disability Services to HHSC by moving HHSC rules from Texas Administrative Code (TAC) Title 40, Chapter 7, Subchapter C to 26 TAC Chapter 910 to consolidate HHSC rules. The new rules are adopted simultaneously elsewhere in this issue of the Texas Register.

Texas Board of Chiropractic Examiners

Adopted Rules Re:

Repealing 22 TAC §78.2 to simplify rules concerning the scope of practice.

CHAPTER 78. SCOPE OF PRACTICE
22 TAC §78.2

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §78.2 (Prohibitions on the Scope of Practice) without changes, as published in the December 10, 2021, issue of the Texas Register (46 Tex Reg 8300). The rule will not be republished. As part of the Board’s comprehensive rule revision effort, the overall purpose of the repeal is to make the Board’s rules simpler and easier to navigate.

The Board will adopt a new §78.2 in a separate rulemaking. That action will simply cut language in the current §78.1 (Scope of Practice) referring to prohibited acts and move it to the new, updated §78.2. These rulemaking actions are to improve the readability and organization of the Board’s rules; there are no substantive changes to the effect of the Board’ current rules. None of these adopted rules change the current chiropractic scope of practice in Texas.

BACKGROUND AND JUSTIFICATION

The Board received no comments relating to the repeal of this rule.

The repeal is adopted under Texas Occupations Code §201.152 (which authorizes the Board to adopt rules necessary to perform the Board’s duties and to regulate the practice of chiropractic) and Texas Occupations Code §201.1525 (which authorizes the Board to adopt rules to clarify what activities are within and outside the scope of practice).

New 22 TAC §78.2, adopting the language referring to the prohibition on chiropractors from using surgical or invasive procedures from §78.1 (Scope of Practice).

CHAPTER 78. SCOPE OF PRACTICE
22 TAC §78.2

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §78.2 (Prohibitions on the Scope of Practice), without changes to the proposed text as published in the December 10, 2021, issue of the Texas Register (46 TexReg 8300). The rule will not be republished. As part of the Board’s comprehensive rule revision effort, the overall purpose of this adopted rule is to make the Board’s rules simpler and easier to navigate.

Specifically, this adopted rule takes language referring to the prohibition on chiropractors from using surgical or invasive procedures from §78.1 (Scope of Practice) and places it into the new §78.2.

BACKGROUND AND JUSTIFICATION

These rulemaking actions are to improve the readability and organization of the Board’s rules; there are no substantive changes to the effect of the Board’s current rules relating to the scope of practice.

The rule is adopted under Texas Occupations Code §201.152 (which authorizes the Board to adopt rules necessary to perform the Board’s duties and to regulate the practice of chiropractic) and Texas Occupations Code §201.1525 (which authorizes the Board to adopt rules clarifying what activities are within and outside the scope of practice).

No other statutes or rules are affected by this new rule.

Repealing 22 TAC §78.3 to simplify the rules regarding the scope of practice.

CHAPTER 78. SCOPE OF PRACTICE
22 TAC §78.3

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §78.3 (General Delegation of Responsibility) without changes, as published in the December 10, 2021, issue of the Texas Register (46 TexReg 8301). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

As part of the Board’s comprehensive rule revision effort, the overall purpose of the repeal is to make the Board’s rules simpler and easier to navigate. The Board will adopt a new §78.3 in a separate rulemaking. These rulemaking actions are to improve the readability and organization of the Board’s rules; there are no substantive changes to the effect of the Board’s current rules on delegation.

The Board received no comments relating to the repeal of this rule.

No other statutes or rules are affected by this repeal.

New 22 TAC §78.3, removing superfluous language from the current subsection (c)(4) of §78.3 referring to the performance of physical treatments by a qualified individual.

CHAPTER 78. SCOPE OF PRACTICE
22 TAC §78.3

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §78.3 (General Delegation of Responsibility) without changes, as published in the December 10, 2021, issue of the Texas Register (46 TexReg 8302). The rule will not be republished. As part of the Board’s comprehensive rule revision effort, the overall purpose of the adopted new rule is to make the Board’s rules simpler and easier to navigate; there are no substantive changes to the effect of the Board’s current rules relating to delegation.

Specifically, this adopted rule removes superfluous language from the current subsection (c)(4) of §78.3 referring to the performance of physical treatments by a qualified individual.

BACKGROUND AND JUSTIFICATION

The Board received no comments concerning this rule.

New 22 TAC §78.6, taking language referring to those acts a chiropractor must affirmatively perform from the old §79.2 (Lack of Diligence) and moving it to a stand-alone rule.

CHAPTER 78. SCOPE OF PRACTICE
22 TAC §78.6

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §78.6 (Required Diligence in the Practice of Chiropractic), without changes to the proposed text as published in the December 10, 2021, issue of the Texas Register (46 TexReg 8303). The rule will not be republished.

This rulemaking action simply takes language referring to those acts a chiropractor must affirmatively perform from the old §79.2 (Lack of Diligence) and moving it to a stand-alone rule. The new adopted §79.2 will retain the prohibited acts only. The Board believes moving the affirmative act language of the current §79.2 to a stand-alone rule in the chapter on scope of practice is a more logical place for it. This adopted rule and the adopted new §79.2 do not substantively change the Board’s existing rules on the diligent practice of chiropractic.

BACKGROUND AND JUSTIFICATION

The Board received no comments concerning this rule.

Repealing 22 TAC §79.2 to simplify rules concerning unprofessional conduct.

CHAPTER 79. UNPROFESSIONAL CONDUCT
22 TAC §79.2

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §79.2 (Lack of Diligence), as published in the December 10, 2021, issue of the Texas Register (46 Tex Reg 8304). The repeal will not be republished.

BACKGROUND AND JUSTIFICATION

As part of the Board’s comprehensive rule revision effort, the overall purpose of the repeal is to make the Board’s rules simpler and easier to navigate. The Board will adopt a new §79.2 in a separate rulemaking. The Board will also adopt a new §78.6 (Required Diligence in the Practice of Chiropractic) to accommodate the structural changes in §79.2. These rulemaking actions are to improve the readability and organization of the Board’s rules; there are no substantive changes to the effect of the Board’s current rules on diligence in the practice of chiropractic.

The Board received no comments relating to the repeal of this rule.

No other statutes or rules are affected by this repeal.

New 22 TAC §79.2, taking language in the old §79.2 referring to those acts a chiropractor must affirmatively perform and moving it to a stand-alone rule in the new §78.6 (Required Diligence in the Practice of Chiropractic).

CHAPTER 79. UNPROFESSIONAL CONDUCT
22 TAC §79.2

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §79.2 (Lack of Diligence), as published in the December 10, 2021, issue of the Texas Register (46 Tex Reg 8305). The rule is adopted without changes to the text as published and will not be republished.

BACKGROUND AND JUSTIFICATION

As part of the Board’s comprehensive rule revision effort, the overall purpose of the new rule is to make the Board’s rules simpler and easier to navigate.

The adopted rule simply takes language in the old §79.2 referring to those acts a chiropractor must affirmatively perform and moving it to a stand-alone rule in the new §78.6 (Required Diligence in the Practice of Chiropractic). The new §79.2 retains the prohibited acts from the old rule. The Board believes moving the affirmative act language of the old §79.2 to a stand-alone rule in the chapter on scope of practice is a more logical place for it. This adopted new §79.2 and the new §78.6 do not substantively change the Board’s existing rules on the diligent practice of chiropractic.

The Board received no comments concerning this rule.

Department of State Health Services

Adopted Rules Re:

Repealing 25 TAC §§417.101 – 417.110 to reflect the move of the state hospitals from the Department of State Health Services to HHSC.

CHAPTER 417. AGENCY AND FACILITY RESPONSIBILITIES
SUBCHAPTER C. CHARGES FOR SERVICES IN TDMHMR FACILITIES
25 TAC §§417.101 – 417.110

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts the repeal of §417.101, concerning Purpose; §417.102, concerning Application; §417.103, concerning Definitions; §417.104, concerning Fee Assessment and Notification of Charges; §417.105, concerning Accruing Charges; §417.106, concerning Appeal Process; §417.107, concerning Filing Notice of Lien; §417.108, concerning Exhibits; §417.109, concerning References; and §417.110, concerning Distribution.

The repeals of §§417.101 – 417.110 are adopted without changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 Tex Reg 6195). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The adopted repeals reflect the move of the state hospitals from the Department of State Health Services to HHSC by moving HHSC rules from Texas Administrative Code (TAC) Title 25, Chapter 417, Subchapter C to 26 TAC Chapter 910 to consolidate HHSC rules. The new rules are adopted simultaneously elsewhere in this issue of the Texas Register.

In Addition Re:

Licensing Actions for Radioactive Materials

OVERVIEW

During the second half of January 2022, the Department of State Health Services (Department) has taken actions regarding Licenses for the possession and use of radioactive materials as listed in the tables (in alphabetical order by location). The subheading “Location” indicates the city in which the radioactive material may be possessed and/or used. The location listing “Throughout TX [Texas]” indicates that the radioactive material may be used on a temporary basis at locations throughout the state.

BACKGROUND AND JUSTIFICATION

In issuing new licenses and amending and renewing existing licenses, the Department’s Business Filing and Verification Section has determined that the applicant has complied with the licensing requirements in Title 25 Texas Administrative Code (TAC), Chapter 289, for the noted action. In granting termination of licenses, the Department has determined that the licensee has complied with the applicable decommissioning requirements of 25 TAC, Chapter 289. In granting exemptions to the licensing requirements of Chapter 289, the Department has determined that the exemption is not prohibited by law and will not result in a significant risk to public health and safety and the environment.

A person affected by the actions published in this notice may request a hearing within 30 days of the publication date. A “person affected” is defined as a person who demonstrates that the person has suffered or will suffer actual injury or economic damage and, if the person is not a local government, is (a) a resident of a county, or a county adjacent to the county, in which radioactive material is or will be located, or (b) doing business or has a legal interest in land in the county or adjacent county. 25 TAC §289.205(b)(15); Health and Safety Code §401.003(15). Requests must be made in writing and should contain the words “hearing request,” the name and address of the person affected by the agency action, the name and license number of the entity that is the subject of the hearing request, a brief statement of how the person is affected by the action what the requestor seeks as the outcome of the hearing, and the name and address of the attorney if the requestor is represented by an attorney. Send hearing requests by mail to: Hearing Request, Radiation Material Licensing, MC 2835, PO Box 149347, Austin, Texas 78714-9347, or by fax to: 512-834-6690, or by e-mail to: RAMlicensing@dshs.texas.gov.

Licensing Actions for Radioactive Materials

OVERVIEW

During the first half of February 2022, the Department of State Health Services (Department) has taken actions regarding Licenses for the possession and use of radioactive materials as listed in the tables (in alphabetical order by location). The subheading “Location” indicates the city in which the radioactive material may be possessed and/or used. The location listing “Throughout TX [Texas]” indicates that the radioactive material may be used on a temporary basis at locations throughout the state.

BACKGROUND AND JUSTIFICATION

Schedules of Controlled Substances

This annual publication of the Texas Schedules of Controlled Substances was signed by John Hellerstedt, M.D., Commissioner of Health, and will take effect 21 days following publication of this notice in the Texas Register.

Details regarding the Schedules of Controlled Substances can be found in this week’s edition of the Texas Register at 47 Tex Reg 1512.