Texas Register March 27, 2020 Volume: 45 Number: 13

Texas Register Table of Contents

Governor

 

Appointments

Governor appoints Cynthia “Cindy” Barberio Payne to the Cancer Prevention and Research Institute of Texas Oversight Committe

Appointments for February 20, 2020Appointed to the Cancer Prevention and Research Institute of Texas Oversight Committee, for a term to expire January 31, 2025, Cynthia “Cindy” Barberio Payne of Spring Branch, Texas (replacing Angelos G. Angelou of Austin, whose term expired).


Governor

Appointments

Governor reappoints four members and appoints four new members to the Rehabilitation Council of Texas

Appointments for February 25, 2020Appointed to the Rehabilitation Council of Texas, for terms to expire October 29, 2022, the following individuals: Michael A. Ebbeler, Jr. of Austin, Texas (Mr. Ebbeler is being reappointed).Bobbie Jean Hodges of Fort Worth, Texas (Ms. Hodges is being reappointed).Elizabeth M. Kendell of San Antonio, Texas (replacing Neva M. Fairchild of Carrollton, whose term expired).Elizabeth “Lisa” Maciejewski-West of San Angelo, Texas (Ms. Maciejewski-West is being reappointed).Karen R. Stanfill of Houston, Texas (Ms. Stanfill is being reappointed).Appointed to the Rehabilitation Council of Texas, for terms to expire February 25, 2023, the following individuals: Jennifer R. Clouse of Temple, Texas (Pursuant to the U.S. Rehabilitation Act).Gennadiy Goldenshteyn of Dallas, Texas (Pursuant to the U.S. Rehabilitation Act).Abdi A. Warsame of Irving, Texas (Pursuant to the U.S. Rehabilitation Act).


Governor

Appointments

Governor appoints Dirrell S. Jones to the Texas Diabetes Council

Appointments for February 28, 2020Appointed to the Texas Diabetes Council, for a term to expire February 1, 2025, Dirrell S. Jones of Farmers Branch, Texas (replacing John W. Griffin, Jr. of Victoria, whose term expired).


Governor

Appointments

Governor appoints Sylvia Hernandez Kauffman as the Inspector General for Health and Human Services

Appointments for March 9, 2020Appointed as the Inspector General for Health and Human Services, for a term to expire February 1, 2021, Sylvia Hernandez Kauffman of Austin, Texas (Ms. Kauffman is being reappointed).


Texas Department of Insurance

Emergency Rule

New 28 TAC §35.1, applying in-person healthcare service payment and documentation requirements to Telemedicine and Telehealth services in response to COVID-19

CHAPTER 35. EMERGENCY RULESSUBCHAPTER A. COVID-19 EMERGENCY RULES28 TAC §35.1OVERVIEWThe Commissioner of Insurance adopts new 28 TAC §35.1, concerning Telemedicine and Telehealth Services, on an emergency basis, effective immediately. The emergency adoption is necessary to ensure adequate access to telemedicine medical and telehealth service in response to the COVID-19 pandemic.The new rule is intended to reduce barriers to teleheath (outlined in the section below) and expand telemedicine by implementing parity with payment and documentation requirements applicable to in-person services. Under the rule, services that are the same must be reimbursed at the same rate whether provided in-person or through telemedicine. Similarly, the new rule does not permit health benefit plans to require documentation for telemedicine services beyond what the plan already requires for in-person services.BACKGROUND AND JUSTIFICATIONOn March 13, 2020, Governor Abbott issued a statewide disaster declaration due to the COVID-19 pandemic. Telemedicine has emerged as a vital tool in combating the spread of infectious diseases, in part because it limits physical contact between a patient and their physician and other patients. Limiting person-to-person contact is key to slowing the spread of this virus.It is critical to preserve physician capacity during the COVID-19 disaster, thus physicians’ exposure to the virus must be reduced to the greatest extent possible. Furthermore, the efficient use of telemedicine would allow physicians to focus more of their time on those in greatest need of in-person care. Finally, telemedicine could allow those physicians who do become ill to continue treating patients in some circumstances.Unfortunately, limited reimbursement rates for telemedicine services serve as a barrier to the expanded use of such technology because physicians are reluctant to accept significantly reduced payment for such services. Some physicians may also be reluctant to engage in telemedicine because of health benefit plans’ different documentation requirements for telemedicine services as opposed to in-person services.


Texas Medical Board

Proposed Rules

Amending 22 TAC §166.2 to update continuing education requirements on the topics of opioids, controlled substances, and human trafficking

CHAPTER 166. PHYSICIAN REGISTRATION22 TAC §166.2OVERVIEWThe Texas Medical Board (Board) proposes amendments to 22 TAC §166.2 concerning Continuing Medical Education.Section 166.2, relating to Continuing Medical Education, is proposed for amendment to require at least two hours of continuing medical education (CME) training in topics related to the prescription of opioids and other controlled substances. The amendments further proposed language requiring the completion of a course in the topic human trafficking prevention awareness.BACKGROUND AND JUSTIFICATIONThe amendments are proposed in accordance with four bills passed in the 2019 legislative session. The Board proposes to require the education for all physicians, rather than create a difficult to follow set of rules based on variables such as license issuance date, license renewal date, type of practice and issuance of DEA registration. The Board further believes that requiring all physicians to complete the new education requirement fulfills legislative intent and better protects the public.The public benefit anticipated as a result of these rules will be to increase and enhance physician knowledge of human trafficking prevention and appropriate opioid and controlled substance prescribing, which are critical health and social issues currently affecting Texas. Requiring physicians to complete such education will decrease prescription drug abuse and diversion and help to combat human trafficking.


Texas Medical Board

Proposed Rules

Amending 22 TAC §172.13 to update requirements for obtaining conceded eminence status

CHAPTER 172. TEMPORARY AND LIMITED LICENSESSUBCHAPTER C. LIMITED LICENSES22 TAC §172.13OVERVIEWThe Texas Medical Board (Board) proposes amendments to 22 TAC §172.13, concerning Conceded Eminence.The amendments to §172.13, relating to Conceded Eminence, add language to clarify the requirements for and process to obtain conceded eminence. Superfluous language is deleted. The rule has also been reorganized and renumbered for clarity.SECTION-BY-SECTION SUMMARYSubsection (c) lists qualifications the Board shall consider in determining whether an applicant has recognized conceded eminence and authority in the applicant’s specialty. Examination requirements have been deleted from subsection (c) and expanded upon in subsection (e).Subsection (d) lists requirements to be shown in an application for conceded eminence. Consideration for foreign applicants who may not be able to maintain a foreign license or certificate has been made in paragraph (1)(B).Subsection (e) lists examination requirements. Previously, subsection (c)(3) required that an applicant not have failed a licensing examination within a three-attempt limit. Subsection (e)(2) is now expanded, based on stakeholder input, to accept examinations not only accepted by the board for licensure, but also accepted for licensure in another state, territory, Canadian province, or country, or accepted for specialty board certification.Subsection (f) lists additional requirements and documentation necessary for a conceded eminence application. Based on stakeholder input, paragraph (3) adds a substantial equivalence analysis for subspecialty training programs that have received ACGME accreditation after the applicant’s participation.Subsections (g) through (l) contain information and requirements listed in the Texas Occupations Code Annotated, §155.006, previously contained in the rule.


Texas Medical Board

Proposed Rules

Amending 22 TAC §178.8 to update timing requirements for the appeals process following Board dismissal

CHAPTER 178. COMPLAINTS22 TAC §178.8The Texas Medical Board (Board) proposes amendments to 22 TAC §178.8, concerning Appeals.The amendments to §178.8 relating to Appeals, adds language requiring that the board receive a complainant’s appeal no later than 90 days after the complainant’s receipt of notice of the board’s dismissal of the complaint.


Texas Medical Board

Proposed Rules

Changing the name of 22 TAC, Chapter 180 from “Texas Physician Health Program and Rehabilitation Orders” to “Texas Physician Health Program”

CHAPTER 180. TEXAS PHYSICIAN HEALTH PROGRAM [AND REHABILITATION ORDERS]The Texas Medical Board (Board) in agreement with the Texas Physician Health Program (TXPHP), proposes amendments to the title of Chapter 180, Texas Physician Health Program and Rehabilitation Orders.The amendment to the title of Chapter 180 changes the name to Texas Physician Health Program.


Texas Medical Board

Proposed Rules

Amending 22 TAC §§180.1 – 180.4 to ensure statutory consistency with current Texas Physician Health Program processes

CHAPTER 180. TEXAS PHYSICIAN HEALTH PROGRAM [AND REHABILITATION ORDERS]22 TAC §§180.1 – 180.4OVERVIEWThe Texas Medical Board (Board) in agreement with the Texas Physician Health Program (TXPHP), proposes amendments to §180.1, concerning Purpose, §180.2, concerning Definitions, §180.3, concerning Texas Physician Health Program, and §180.4, concerning Operation of Program. SECTION-BY-SECTION SUMMARYThe amendments to §180.1, entitled Purpose, describe the authority for rulemaking and the purpose of the Texas Physician Health Program under Chapter 167 of the Texas Occupations Code.The amendments to §180.2, entitled Definitions, update existing definitions and add new definitions in order to maintain consistency within this chapter.The amendments to §180.3, entitled Texas Physician Health Program, clarify and update existing language to ensure consistency with current program processes and TXPHP Governing Board directives.The amendments to §180.4, entitled Operation of Program, clarify and update existing language to ensure consistency with current program processes and TXPHP Governing Board directives.


Texas Medical Board

Proposed Rules

Repealing 22 TAC §180.7 to reflect the fact that the Board no longer issues Rehabilitation Orders

CHAPTER 180. TEXAS PHYSICIAN HEALTH PROGRAM [AND REHABILITATION ORDERS]22 TAC §180.7The Texas Medical Board (Board) in agreement with the Texas Physician Health Program (TXPHP) proposes the repeal of §180.7, concerning Rehabilitation Orders.The repeal of §180.7, entitled Rehabilitation Orders, eliminates outdated rule language that was historically necessary when TXPHP was created in 2009. Historically, this section transferred licensees who were being confidentially monitored by the Board into the newly created Texas Physician Health Program. The Board no longer issues confidential Rehabilitation Orders and therefore this section is no longer necessary.

Texas Medical Board

Adopted Rules

Amending 22 TAC §195.1 and §195.4 to add language distinguishing pain management clinic personnel from physicians

CHAPTER 195. PAIN MANAGEMENT CLINICS22 TAC §195.1, §195.4OVERVIEWThe Texas Medical Board (Board) proposes amendments to 22 TAC §195.1, concerning Definitions, and §195.4, concerning Operation of Pain Management Clinics.Section 195.1, relating to Definitions, is amended to add a new definition for “personnel”, distinguishing personnel from physicians.Section 195.4, relating to Operation of Pain Management Clinics, is amended to add language distinguishing personnel from physicians who may be employed or contracted to provide medical services at a pain clinic.BACKGROUND AND JUSTIFICATIONThe amendments are necessitated by House Bill 2454 (86th Legislature, R.S.), which sets for the new continuing education requirements in the topic of opioid prescribing and provides that the new hours may not be credited toward hours required under board rule for pain clinic personnel. The amendments are intended to clarify that a physician’s completion of the additional education hours will be credited toward the rules requiring additional education for physicians employed or contracted to provide medical services in a pain clinic found under Chapter 195, in conformance with legislative intent.


Texas Board of Chiropractic Examiners

In Addition

The Board intends to review the rules in Chapter 82 (Internal Board Procedures) for readoption or repeal

Title 22, Part 3The Texas Board of Chiropractic Examiners (Board) files this notice of its intent to review Chapter 82, concerning Internal Board Procedures, in accordance with Texas Government Code §2001.039.An assessment will be made by the Board as to whether the reasons for adopting or readopting the chapter continue to exist. Each rule will be reviewed to determine whether it is obsolete, whether the rule reflects current legal and policy considerations, and whether the rule reflects current procedures of the Board.Comments on the review may be submitted to Christopher Burnett, General Counsel, Texas Board of Chiropractic Examiners, 333 Guadalupe, Suite 3-825, Austin, Texas 78701; via email: rules@tbce.state.tx.us; or fax: (512) 305-6705. The Board must receive comments no later than 30 days from the date that this review is published in the Texas Register. Please include the chapter name and number (Chapter 82 – Internal Board Procedures) in the subject line of any comments submitted by email.


Texas Health and Human Services Commission

In Addition

Commission intends to update fee schedules for DMEPOS, family planning, and physicians and other practitioner services under the Texas State Plan for Medical Assistance

Public Notice – Texas State Plan for Medical Assistance AmendmentsOVERVIEWThe Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendments are effective April 1, 2020.The purpose of the amendments is to update the fee schedules in the current state plan by adjusting fees, rates, or charges for the following services:Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS);Family Planning Services; andPhysicians and Other Practitioners.RATE HEARINGFor all proposed rate changes, a rate hearing was conducted on February 21, 2020, at 1:30 p.m. in Austin, Texas. Information about the proposed rate change(s) and the hearing can be found in the February 7, 2020, issue of the Texas Register at pages 943-946. These can be found at http://www.sos.state.tx.us/texreg/index.shtml.COPY OF PROPOSED AMENDMENTSInterested parties may obtain additional information and/or a free copy of the proposed amendments by contacting Cynthia Henderson, State Plan Policy Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, TX 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 amendments will be available for review at the local county offices of the Texas Department of Aging and Disability Services.WRITTEN COMMENTS Written comments about the proposed amendments and/or requests to review comments may be sent by U.S. mail, overnight mail, special delivery mail, hand delivery, fax, or email. Addresses are provided in this issue of the Texas Register.


Texas Health and Human Services Commission

In Addition

Commission intends to update fee schedules for outpatient hospital, physicians and other practitioner, EPSDT, and clinical diagnostic laboratory services under the Texas State Plan for Medical Assistance (effective Feb. 4, 2020)

Public Notice – Texas State Plan for Medical Assistance AmendmentsThe Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendments are effective February 4, 2020.The purpose of the amendments is to update the fee schedules in the current state plan by adjusting fees, rates, or charges for the following services:Outpatient Hospital;Physicians and Other Practitioners;Early and Periodic Screening, Diagnosis, and Treatment (EPSDT); andClinical Diagnostic Laboratory.RATE HEARINGFor proposed rate changes a rate hearing was conducted on March 23, from 9:00 a.m. until 10:00 a.m. in Austin, Texas. Information about the proposed rate change(s) and the hearing was published in the March 20, 2020, issue of the Texas Register. This notice can be found at http://www.sos.state.tx.us/texreg/index.shtml. It can also be found on HHSC’s website at https://hhs.texas.gov/about-hhs/communications-events/meetings-events.COPY OF PROPOSED AMENDMENTSInterested parties may obtain additional information and/or a free copy of the proposed amendments by contacting Cynthia Henderson, State Plan Policy Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, TX 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 amendments 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).WRITTEN COMMENTS Written comments about the proposed amendments and/or requests to review comments may be sent by U.S. mail, overnight mail, special delivery mail, hand delivery, fax, or email. Addresses are provided in this issue of the Texas Register.


Texas Health and Human Services Commission

In Addition

Commission intends to update fee schedules for outpatient hospital, physicians and other practitioner, EPSDT and clinical diagnostic laboratory services under the Texas State Plan for Medical Assistance (effective Mar. 18, 2020)

Public Notice – Texas State Plan for Medical Assistance AmendmentsThe Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendments are effective March 18, 2020.The purpose of the amendments is to update the fee schedules in the current state plan by adjusting fees, rates, or charges for the following services:Outpatient Hospital;Physicians and Other Practitioners;Early and Periodic Screening, Diagnosis, and Treatment (EPSDT); andClinical Diagnostic Laboratory.RATE HEARINGFor proposed rate changes a rate hearing was conducted on March 23, from 9:00 a.m. until 10:00 a.m. in Austin, Texas. Information about the proposed rate change(s) and the hearing was published in the March 20, 2020, issue of the Texas Register. This notice can be found at http://www.sos.state.tx.us/texreg/index.shtml. It can also be found on HHSC’s website at https://hhs.texas.gov/about-hhs/communications-events/meetings-events.COPY OF PROPOSED AMENDMENTSInterested parties may obtain additional information and/or a free copy of the proposed amendments by contacting Cynthia Henderson, State Plan Policy Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, TX 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 amendments 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).WRITTEN COMMENTS Written comments about the proposed amendments and/or requests to review comments may be sent by U.S. mail, overnight mail, special delivery mail, hand delivery, fax, or email. Addresses are provided in this issue of the Texas Register.


Texas Department of State Health Services

In Addition

DSHS publishes decisions regarding the issuance, amendment or renewal of certain parties’ licensure for the possession and use of radioactive material

OVERVIEWDuring the first half of February, 2020, the Department of State Health Services (Department) has taken actions regarding Licenses for the possession and use of radioactive materials. Licensing decisions pertaining to each applicant is included in the March 27, 2020 edition of the Texas Register. BACKGROUND AND JUSTIFICATIONIn 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.AFFECTED PERSONS’ RIGHT TO HEARINGA 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.


Texas Department of State Health Services

In Addition

DSHS publishes updated list of Schedules for controlled substances

PURSUANT TO THE TEXAS CONTROLLED SUBSTANCES ACT, HEALTH AND SAFETY CODE, CHAPTER 481, THESE SCHEDULES SUPERCEDE PREVIOUS SCHEDULES AND CONTAIN THE MOST CURRENT VERSION OF THE SCHEDULES OF ALL CONTROLLED SUBSTANCES FROM THE PREVIOUS SCHEDULES AND MODIFICATIONS.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.Controlled substances are listed in one of the following Schedule categories in the March 27, 2020 edition of the Texas Register: SCHEDULE ISchedule I opiatesSchedule I opium derivativesSchedule I hallucinogenic substances Schedule I depressantsSchedule I stimulantsSchedule I Cannabimimetic agentsSchedule I temporarily listed substances subject to emergency scheduling by the United States Drug Enforcement AdministrationSCHEDULE IISchedule II substances, vegetable origin or chemical synthesisSchedule II OpiatesSchedule II stimulantsSchedule II depressantsSchedule II hallucinogenic substancesSchedule II precursorsSCHEDULE IIISchedule III depressantsSchedule III narcoticsSchedule III stimulantsSchedule III anabolic steroids and hormonesSchedule III hallucinogenic substancesSCHEDULE IVSchedule IV depressantsSchedule IV stimulantsSchedule IV narcoticsSchedule IV other substancesSCHEDULE VSchedule V narcotics containing non-narcotic active medicinal ingredientsSchedule V stimulantsSchedule V depressants