29 Mar 2024

Texas Register March 29, 2024 Volume: 49 Number: 13

by | posted in: Department of Aging and Disability Services, Governor, Texas Board of Nursing, Texas Department of Licensing and Regulation, Texas Department of State Health Services, Texas Emergency Services Retirement System, Texas Health and Human Services Commission |

Texas Register Table of Contents

Governor

Appointments Re:

Appointed to the Family Practice Residency Advisory Committee, for a term to expire August 29, 2026, Zoey Z. Wang of Houston, Texas.

Texas Department of Licensing and Regulation

Proposed Rules Re:

Amending 16 TAC §§114.1, 114.70, 114.90, to require certain health care providers to provide itemized bills and improve clarity and consistency of other rule formatting.

CHAPTER 114. ORTHOTISTS AND PROSTHETISTS
16 TAC §§114.1, 114.70, 114.90

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 114, §§114.1, 114.70, and 114.90 regarding the Orthotists and Prosthetists program. These proposed changes are referred to as “proposed rules.”

BACKGROUND AND JUSTIFICATION

The rules under 16 TAC, Chapter 114, implement Texas Occupations Code, Chapter 605, Orthotists and Prosthetists.

The proposed rules are necessary to implement Senate Bill (SB) 490, 88th Legislature, Regular Session, which requires certain health care providers to provide itemized bills. SB 490 added new Chapter 185 to the Health and Safety Code to address this issue. The term “health care provider” is generally defined under Health and Safety Code §185.001(2) to include a facility licensed, certified, or otherwise authorized to provide health care services or supplies in this state in the ordinary course of business. Section 185.003 requires appropriate licensing authorities to take disciplinary action against providers who violate the requirements of Chapter 185 as if the provider violated an applicable licensing law.

The Department regulates numerous health care professions. Because the definition of term “health care provider” is restricted in the bill to regulated facilities, however, SB 490 appears to directly impact only those health care professions for which facilities are regulated. The Department regulates the professions of orthotics and prosthetics under Occupations Code Chapter 605, the Orthotics and Prosthetics Act (the Act). Under §605.260 of the Act, orthotic and prosthetic facilities are required to be accredited by the Department. Because these accredited facilities constitute health care providers under Health and Safety Code §185.001(2), the Department is required to treat a violation by an accredited facility of the itemized billing requirements as a violation of the Department’s licensing statutes. The proposed rules therefore provide that accredited facilities must comply with Health and Safety Code, Chapter 185, and that failure to do so is a basis for disciplinary action under both the Act and the enforcement provisions of Occupations Code, Chapter 51.

In addition to implementing SB 490, the proposed rules make non-substantive changes for purposes of clarity and consistency with the format of other rule chapters administered by the Department. These changes include the addition of clarifying language concerning the authority for and applicability of the rules, the addition and revision of headings, and the deletion of unnecessary language.

SECTION-BY-SECTION SUMMARY

  • The proposed rules amend §114.1, Authority. The heading is modified to “Authority and Applicability” and the rule is divided into two subsections to separately address each topic. The existing rule text is incorporated into new subsection (a) and language is inserted to clarify the statutory authority for the rule chapter and to include a reference to the new Health and Safety Code Chapter 185. New subsection (b) is added to clarify that the rules in 16 TAC, Chapter 60, Procedural Rules of the Commission and the Department, and the rules in 16 TAC, Chapter 100, General Provisions for Health-Related Programs, apply to the Orthotists and Prosthetists program in addition to the rules in Chapter 114.
  • The proposed rules amend §114.70, Responsibilities of Licensees. The heading is modified to “Responsibilities of Licensees and Accredited Facilities” to more accurately reflect the scope of the rule. New subsection (e) is inserted to set forth the requirement of accredited facilities to comply with Health and Safety Code Chapter 185 and that failure to do so is a basis for enforcement action. Paragraphs (e)(1) through (e)(3) outline the required components of the bills.
  • The proposed rules amend §114.90, Professional Standards and Basis for Disciplinary Action. A new subheading, “Enforcement Actions,” is added to subsection (a) to improve readability. Redundant verbiage concerning the authority for the rule is removed. Clarifying changes are made to the syntax of subsections (a)(1) and (a)(2). Subsection (a)(2) is revised to reflect that the sources of the Department’s enforcement authority under Chapter 114 may include a variety of statutes not specifically listed, as reflected in the revised §114.1. Lastly, a new subheading, “Fraud, misrepresentation, or concealment” is added to subsection (b) to improve readability.

Texas Health and Human Services Commission

Proposed Rules Re:

Amending 26 TAC §§556.2 – 556.14, to implement House Bill 4123 and Senate Bill 681 regarding Health and Human Services Commission (HHSC) requests for certified nurse aide (CNA) criminal history information and HHSC Long-Term Care Regulation exemptions for regulated certified nurse aids, respectively, as well as digitizing the Texas Unified Licensure Information Portal (TULIP).

CHAPTER 556. NURSE AIDES
26 TAC §§556.2 – 556.14

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§556.2 – 556.9; new §§556.10 – 556.14; and the repeal of §§556.10 – 556.13, and 556.100.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement two bills from the 88th Texas Legislature, Regular Session, 2023. House Bill (H.B.) 4123 relates to HHSC obtaining criminal history information from the Federal Bureau of Investigation (FBI) and Texas Department of Public Safety for certified nurse aides (CNA). Senate Bill (S.B.) 681 relates to the Texas Occupations Code, Chapter 53, exemption for HHSC Long-Term Care Regulation (LTCR)-regulated Certified Nurse Aides. This rule project also proposes revisions related to the Texas Unified Licensure Information Portal (TULIP), with the purpose of changing from a paper process to a digital process. This proposal also makes non-substantive edits to update references in the rules.

SECTION-BY-SECTION SUMMARY

  • The proposed amendment to §556.2 revises definitions for nurse aide rules. Paragraph (1) revises the definition of “abuse” to be consistent with the definition in other rule chapters. Paragraph (33) adds a definition for “online portal.”
  • The proposed amendment to §556.3 implements S.B. 681 relating to criminal convictions, updates the rule to reflect the current automated process using TULIP, and updates references in the rule.
  • The proposed amendment to §556.4 updates the rule to reflect the current automated process using TULIP and updates references in the rule.
  • The proposed amendment to §556.5 makes a non-substantive grammar update to the rule.
  • The proposed amendment to §556.6 implements S.B. 681 relating to criminal convictions, implements H.B. 4123 relating to FBI criminal history, updates the rule to reflect the current automated process using TULIP, updates a reference in the rule, and makes a non-substantive edit to improve readability.
  • The proposed amendment to §556.7 updates the rule to reflect the current automated process using TULIP.
  • The proposed amendment to §556.8 updates the rule to reflect the current automated process using TULIP and updates references in the rule.
  • The proposed amendment to §556.9 implements H.B. 4123 relating to FBI criminal history, updates the rule to reflect the current automated process using TULIP, and makes a non-substantive edit to improve readability.
  • Proposed new §556.10 implements S.B. 681 relating to criminal convictions and H.B. 4123 relating to FBI criminal history.
  • Proposed new §556.11 allows §556.10 to be renumbered as §556.11 and makes non-substantive grammar edits and updates to the rule to reflect the current automated process using TULIP.
  • Proposed new §556.12 allows §556.11 to be renumbered as §556.12 and makes non-substantive grammar edits.
  • Proposed new §556.13 allows §556.12 to be renumbered as §556.13 and makes non-substantive grammar edits.
  • Proposed new §556.14 allows §556.13 to be renumbered as §556.14 and makes non-substantive grammar edits and adds language clarifying that a military spouse with an active nurse aide certification can print duplicate licenses and make name changes though the online portal.
Repealing 26 TAC §§556.10 – 556.13, 556.100, to allow non-substantive grammar edits and relating to the end of the Nurse Aide Transition from Temporary Status enforced during the COVID-19 public health emergency.

CHAPTER 556. NURSE AIDES
26 TAC §§556.10 – 556.13, 556.100

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§556.2 – 556.9; new §§556.10 – 556.14; and the repeal of §§556.10 – 556.13, and 556.100.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement two bills from the 88th Texas Legislature, Regular Session, 2023. House Bill (H.B.) 4123 relates to HHSC obtaining criminal history information from the Federal Bureau of Investigation (FBI) and Texas Department of Public Safety for certified nurse aides (CNA). Senate Bill (S.B.) 681 relates to the Texas Occupations Code, Chapter 53, exemption for HHSC Long-Term Care Regulation (LTCR)-regulated Certified Nurse Aides. This rule project also proposes revisions related to the Texas Unified Licensure Information Portal (TULIP), with the purpose of changing from a paper process to a digital process. This proposal also makes non-substantive edits to update references in the rules.

SECTION-BY-SECTION SUMMARY

  • The proposed repeal of §556.10 allows the rule to be renumbered as §556.11, with revisions for non-substantive grammar edits and updates to the rule to reflect the current automated process using TULIP.
  • The proposed repeal of §556.11 allows the rule to be renumbered as §556.12 with non-substantive grammar edits.
  • The proposed repeal of §556.12 allows the rule to be renumbered as §556.13, with non-substantive grammar edits.
  • The proposed repeal of §556.13 allows the rule to be renumbered as §556.14, with revisions for non-substantive grammar edits and language clarifying that a military spouse with an active nurse aide certification can print duplicate licenses and make name changes though the online portal.
  • The proposed repeal of §556.100 relates to the end of the Nurse Aide Transition from Temporary Status rule that was in effect only during the COVID-19 public health emergency.

Adopted Rules Re:

Amending 1 TAC §353.2, §353.4, to add requirements reimbursements for health care MCOs to reimburse specific out-of-network physicians and out-of-network nursing facilities.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER A. GENERAL PROVISIONS
1 TAC §353.2, §353.4

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.2, concerning Definitions; and §353.4, concerning Managed Care Organization Requirements Concerning Out-of-Network Providers.

BACKGROUND AND JUSTIFICATION

The purpose of the proposed amendment to §353.4 is to require Medicaid health care managed care organizations (MCOs) to reimburse an out-of-network physician for providing Medicaid telemedicine medical services to a child in a primary or secondary school-based setting without prior authorization, even if the physician is not the child’s primary care provider. This requirement is in accordance with Texas Government Code §531.0217(c-4) and is currently implemented through contracts between health care MCOs and HHSC. Texas Government Code §531.0217(c-4) was added by House Bill 1878, 84th Legislature, Regular Session, 2015, and amended by Senate Bill 670, 86th Legislature, Regular Session, 2019.

The proposed amendment to §353.2 adds definitions of “nursing facility,” “nursing facility add-on services,” “nursing facility services,” and “nursing facility unit rate.” The proposed amendment also removes a definition not used in the chapter.

SECTION-BY-SECTION SUMMARY

  • The proposed amendment to §353.2 adds the definitions for “Nursing facility,” “Nursing facility add-on services,” “Nursing facility services,” and “Nursing facility unit rate” to provide definitions of terms used in §353.4 and to align the definitions with language in managed care contracts. The proposed amendment removes the definition for “Main dental home provider” because this term is not used in the chapter.

  • The proposed amendment to §353.4 adds paragraph (3) to subsection (b) to include requirements for health care MCOs to reimburse out-of-network physicians for delivering a telemedicine medical service to a child in a primary or secondary school-based setting, even if the physician is not the child’s primary care provider. The proposed amendment to add paragraph (3) to subsection (b) implements Texas Government Code §531.0217(c-4) and further aligns rule language with language in managed care contracts.

  • The proposed amendment to §353.4 reformats paragraph (1) of subsection (f) so that subparagraph (A) provides out-of-network nursing facilities that are located within the MCO’s service area must be reimbursed at or above 95 percent of the nursing facility unit rate and subparagraph (B) provides out-of-network nursing facilities that are located outside of the MCO’s service area must be reimbursed at or above 100 percent of the nursing facility unit rate. The proposed amendment also removes existing language in subparagraph (B) from paragraph (1) of subsection (f) as that language pertains to the definition of nursing facility unit rates, which is now defined in paragraph (77) of §353.2.

  • The proposed amendments to §353.2 and §353.4 also reformat the rules as necessary and make minor editorial changes.

Transferred Rules Re:

Rule Transfer, to transfer rules from the Department of Aging and Disability Services (DADS) to Texas Health and Human Services Commission (HHSC).

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, some agencies were abolished and their functions transferred to the Texas Health and Human Services Commission (HHSC). Texas Government Code, §531.0202(b), specified the Department of Aging and Disability Services (DADS) be abolished September 1, 2017, after all its functions were transferred to HHSC in accordance with Texas Government Code, §531.0201 and §531.02011. The former DADS rule in Texas Administrative Code, Title 40, Part 1, Chapter 49, Contracting for Community Services is being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 52, Contracting for Community Services.

The rule will be transferred in the Texas Administrative Code effective April 29, 2024.

Proposed Rule Reviews Re:

Reviewing Title 1, Part 15, to consider for readoption, revision, or repeal the chapter concerning Civil Rights.

The Texas Health and Human Services Commission (HHSC) proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 1, Part 15, of the Texas Administrative Code:

Chapter 395, Civil Rights

Reviewing Title 26, Part 1, to consider for readoption, revision, or repeal the chapter regarding Nursing Facility Administrators.

The Texas Health and Human Services Commission (HHSC) proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 26, Part 1, of the Texas Administrative Code:

Chapter 555, Nursing Facility Administrators

Reviewing Title 26, Part 1, to consider for readoption, revision, or repeal the chapter concerning Nurse Aides.

The Texas Health and Human Services Commission (HHSC) proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 26, Part 1, of the Texas Administrative Code:

Chapter 556, Nurse Aides

Reviewing Title 26, Part 1, to consider for readoption, revision, or repeal the chapter regarding Medication Aides–Program Requirements.

The Texas Health and Human Services Commission (HHSC) proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 26, Part 1, of the Texas Administrative Code:

Chapter 557, Medication Aides–Program Requirements

Adopted Rule Reviews Re:

Adopting the review of Title 1, Part 15, concerning hearings.

The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 1, Part 15, of the Texas Administrative Code:

Chapter 357, Hearings

Adopting the review of Title 1, Part 15, regarding Informal Dispute Resolution and Informal Reconsideration.

The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 1, Part 15, of the Texas Administrative Code (TAC):

Chapter 393, Informal Dispute Resolution and Informal Reconsideration

In Addition Re:

Public Hearing – Texas State Hospital Long-Range Planning Report Meetings – Updated 03/14/2024

OVERVIEW

HHSC will conduct the next hybrid (in-person and virtual) meeting on April 16th, 2024, to receive public comment on the draft long-range planning report for the Texas State Hospitals. A draft report will be available to the public on the HHS website one week prior to the April 16th meeting. The report will address:

(1) projected future bed requirements for state hospitals;

(2) documenting the methodology used to develop the projection of future bed requirements;

(3) projected maintenance costs for institutional facilities;

(4) recommended strategies to maximize the use of institutional facilities; and

(5) how each state hospital will:

(A) serve and support the communities and consumers in its service area; and

(B) fulfill statewide needs for specialized services.

The initiatives outlined in this report will guide the Texas State Hospitals for the next six years. This report is developed under the authority of Texas Health and Safety Code §533.032.

Texas Department of State Health Services

Proposed Rule Reviews Re:

Reviewing Title 25, Part 1, to consider for readoption, revision, or repeal the chapter regarding Mental Health System Administration.

The Texas Health and Human Services Commission (HHSC), on behalf of Texas Department of State Health Services (DSHS), proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 25, Part 1, of the Texas Administrative Code:

Chapter 401, Mental Health System Administration

Reviewing Title 25, Part 1, to consider for readoption, revision, or repeal the chapter concerning Protection of Clients and Staff–Mental Health Services.

The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of State Health Services (DSHS), proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 25, Part 1, of the Texas Administrative Code:

Chapter 404, Protection of Clients and Staff–Mental Health Services

Reviewing Title 25, Part 1, to consider for readoption, revision, or repeal the chapter regarding Local Mental Health Authority Responsibilities.

The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of State Health Services, proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 25, Part 1, of the Texas Administrative Code:

Chapter 412, Local Mental Health Authority Responsibilities

Reviewing Title 25, Part 1, to consider for readoption, revision, or repeal the chapter concerning Provider Clinical Responsibilities–Mental Health Services.

The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of State Health Services (DSHS), proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 25, Part 1, of the Texas Administrative Code:

Chapter 415, Provider Clinical Responsibilities–Mental Health Services

In Addition Re:

Legislative Appropriations Request (LAR) Notice of Public Hearing on 2026-2027 Biennium LAR

Date/Time:

Wednesday, May 1, 2024

2:00 p.m.

Location:

Texas Department of State Health Services (DSHS)

Robert D. Moreton Building

Public Hearing Room M-100, First Floor

1100 West 49th Street

Austin, Texas 78756

Order Placing Zuranolone into Schedule IV, Placing Nine Specific Fentanyl-Related Substances into Schedule I, and Temporarily Placing MDMB-4en-PINACA, 4F-MDMB-BUTICA, ADB-4en-PINACA, CUMYL-PEGACLONE, and 5F-EDMB-PICA, and MMB-FUBICA into Schedule I.

For more information, please visit this week’s edition of the Texas Register at 49 Tex Reg 2113.

Department of Aging and Disability Services

Transferred Rules Re:

Rule Transfer, to transfer rules from the Department of Aging and Disability Services (DADS) to Texas Health and Human Services Commission (HHSC).

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, some agencies were abolished and their functions transferred to the Texas Health and Human Services Commission (HHSC). Texas Government Code, §531.0202(b), specified the Department of Aging and Disability Services (DADS) be abolished September 1, 2017, after all its functions were transferred to HHSC in accordance with Texas Government Code, §531.0201 and §531.02011. The former DADS rule in Texas Administrative Code, Title 40, Part 1, Chapter 49, Contracting for Community Services is being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 52, Contracting for Community Services.

Texas Board of Nursing

Proposed Rules Re:

Reviewing Title 22, Part 11, to consider for re-adoption, re-adoption with amendments, or repeal the chapters concerning Nurse Licensure Compact, Fees, Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments, and Patient Safety Pilot Programs on Nurse Reporting Systems.

In accordance with Government Code §2001.039, the Texas Board of Nursing (Board) files this notice of intention to review and consider for re-adoption, re-adoption with amendments, or repeal, the following chapter contained in Title 22, Part 11, of the Texas Administrative Code, pursuant to the 2022 rule review plan adopted by the Board at its April 2022 meeting.

Chapter 220. Nurse Licensure Compact §220.1

Chapter 223. Fees §223.1, §223.2

Chapter 224. Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments §§224.1 – 224.11

Chapter 226. Patient Safety Pilot Programs on Nurse Reporting Systems §§226.1 – 226.7

Texas Emergency Services Retirement System

Proposed Rules Re:

Reviewing Title 34, Part 11, to consider for re-adoption, re-adoption with amendments, or repeal chapters concerning General Provisions Relating to the Texas Emergency Retirement System, Membership in the Texas Emergency Services Retirement System, Creditable Service for Members of the Texas Emergency Services Retirement System, Benefits from the Texas Emergency Services Retirement System, and Administration of the Texas Emergency Services Retirement System.

The Board of Trustees of the Texas Emergency Services Retirement System (“Board”) files this notice of intent to review the following chapters in 34 Texas Administrative Code: Chapter 302, General Provisions Relating to the Texas Emergency Retirement System, Chapter 304, Membership in the Texas Emergency Services Retirement System, Chapter 306, Creditable Service for Members of the Texas Emergency Services Retirement System, Chapter 308, Benefits from the Texas Emergency Services Retirement System, and Chapter 310, Administration of the Texas Emergency Services Retirement System. This review is done pursuant to Texas Government Code §2001.039, which requires a state agency to review and consider its rules for readoption, readoption with amendments, or repeal every for years. During this review, the Board will assess whether the reasons for initially adopting these rules continue to exist.