Texas Register March 5, 2021 Volume: 46 Number: 10

Office of the Attorney General

 

Opinions

Opinion No. KP-0353: A physician is not necessarily required to provide supervision when delegating authority to a certified registered nurse anesthetist

ISSUEWhether chapter 157 of the Occupations Code requires a physician to provide any level of supervision to a certified registered nurse anesthetist to whom the physician has delegated authority, and the potential liability for such delegation (RQ-0371-KP). OPINION Section 157.058 of the Occupations Code does not, by itself, require a physician who properly delegates anesthesia-related tasks to a certified registered nurse anesthetist (“CRNA”) to supervise the performance of those acts. Whether and the extent to which physician supervision is required for an act delegated to a CRNA will depend on the specific act delegated, the type of facility in which that task is performed, and any relevant regulations of that facility.Questions of physician liability in any specific context are highly factual and not an appropriate determination for the opinion process.CONTACTSherif Zaafran, M.D.PresidentTexas Medical BoardPost Office Box 2018Austin, Texas 78768-2018

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State Board of Dental Examiners

Emergency Rule

Amending 22 TAC §108.7 to establish minimum standards for safe dental practice during the COVID-19 pandemic

CHAPTER 108. PROFESSIONAL CONDUCTSUBCHAPTER A. PROFESSIONAL RESPONSIBILITY22 TAC §108.7OVERVIEWThe State Board of Dental Examiners (Board) adopts on an emergency basis an amendment to 22 TAC §108.7, concerning Minimum Standard of Care, General, in response to the COVID-19 disaster declaration. The amendment dictates the minimum standards for safe practice during the COVID-19 disaster.BACKGROUND AND JUSTIFICATION This rule is adopted on an emergency basis due to the imminent peril to the public health, safety and welfare caused by failure to adhere to the minimum standards for safe practice during the COVID-19 pandemic.The emergency rule amendment is applicable only for purposes of the COVID-19 disaster declaration and shall only remain effective until the COVID-19 disaster declaration is terminated.

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Texas Department on Aging and Disability Services

Emergency Rule

Amending 40 TAC §47.25 to allow Primary Home Care (PHC), Community Attendant Services (CAS), and Family Care (FC) programs to conduct attendant orientation virtually during the COVID-19 pandemic

CHAPTER 47. PRIMARY HOME CARE, COMMUNITY ATTENDANT SERVICES, AND FAMILY CARE PROGRAMSSUBCHAPTER C. STAFF REQUIREMENTS40 TAC §47.25OVERVIEWThe Department of Aging and Disability Services is renewing the effectiveness of emergency amended §47.25 for a 60-day period. The text of the emergency rule was originally published in the November 6, 2020, issue of the Texas Register (45 TexReg 7798).HHSC is renewing this emergency amendment in §47.25(b)(C) to allow a supervisor to conduct an attendant’s orientation by telephone or videoconferencing at the discretion of the supervisor at any location with or without the participation of the individual receiving attendant services.BACKGROUND AND JUSTIFICATION As authorized by Texas Government Code §2001.034, HHSC may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of these emergency amendments to §47.25, Attendant Orientation, and §47.65, Supervisory Visits.

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Texas Department on Aging and Disability Services

Emergency Rule

Amending 40 TAC §47.65 to allow Primary Home Care (PHC), Community Attendant Services (CAS), and Family Care (FC) program supervisors to virtually conduct supervisory visits during the COVID-19 pandemic

CHAPTER 47. PRIMARY HOME CARE, COMMUNITY ATTENDANT SERVICES, AND FAMILY CARE PROGRAMSSUBCHAPTER E. SERVICE REQUIREMENTS40 TAC §47.65OVERVIEWThe Department of Aging and Disability Services is renewing the effectiveness of emergency amended §47.65 for a 60-day period. The text of the emergency rule was originally published in the November 6, 2020, issue of the Texas Register (45 TexReg 7799).HHSC is renewing this emergency amendment in §47.65(e) so that a supervisor is not required to conduct in-person supervisory visits. The emergency amendment allows a supervisor to conduct a supervisory visit by telephone or videoconference.BACKGROUND AND JUSTIFICATION As authorized by Texas Government Code §2001.034, HHSC may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of these emergency amendments to §47.25, Attendant Orientation, and §47.65, Supervisory Visits.

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Texas Optometry Board

Proposed Rules

Amending 22 TAC §275.2 to clarify continuing education requirements related to the human trafficking course

CHAPTER 275. CONTINUING EDUCATION22 TAC §275.2OVERVIEWThe Texas Optometry Board proposes amendments to §275.2, concerning Required Education, to clarify continuing education requirements related to the human trafficking course required by §116.002 of the Occupations Code. The Texas Optometry Board implemented a biennial renewal system as of January 1, 2021. This amendment simply clarifies the requirements of the human trafficking requirement during the transition to the biennial license.BACKGROUND AND JUSTIFICATION The amendment is necessary to protect the health, safety, and welfare of the residents of this state. The amendment applies to all licensed optometrists and it is predicted that there will be no economic costs for licensees’ subject to the amendment.

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Texas Optometry Board

Proposed Rules

Amending 22 TAC §279.16 to allow remote treatment of patients and establish related requirements

CHAPTER 279. INTERPRETATIONS22 TAC §279.16OVERVIEWThe Texas Optometry Board proposes amendments to §279.16, concerning Telehealth Services, to allow the remote treatment and examination of patients as authorized by amendments to Texas Occupations Code Chapter 111.RULE DETAILS The rule amendments set out the establishment of the optometrist-patient relationship and standard of care requirements for the practice of telehealth as well as notice and patient record requirements. The amendments do not change the requirement in §279.1, concerning Contact Lens Examination, and §279.3, concerning Spectacle Examination, that an optometrist or therapeutic optometrist must make and record in person the findings required by Texas Occupations Code §351.353.BACKGROUND AND JUSTIFICATION The legislature has recognized that technology and training have made the provision of telehealth possible for many health issues and treatments. This may be especially the case for rural residents and for those patients who might be at a health risk seeking treatment at an ophthalmic office.

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Cancer Prevention and Research Institute of Texas

Proposed Rules

Amending 25 TAC §702.19 to create an exception to the general communication prohibition during the grant application process

CHAPTER 702. INSTITUTE STANDARDS ON ETHICS AND CONFLICTS, INCLUDING THE ACCEPTANCE OF GIFTS AND DONATIONS TO THE INSTITUTE25 TAC §702.19OVERVIEWThe Cancer Prevention and Research Institute of Texas (“CPRIT” or “the Institute”) proposes an amendment to 25 TAC §702.19(b) allowing an exception to the general communication prohibition between grant applicant and a member of the Scientific Research and Prevention Programs Committee regarding the substance of a pending application.BACKGROUND AND JUSTIFICATION Until a grant applicant receives final notice regarding the outcome of a grant application, §702.19 prohibits discussion of the substance of a grant application between a grant applicant and a member of the Scientific Research and Prevention Programs Committee (SRPP), Program Integration Committee, or Oversight Committee. The proposed exception to §703.19(b) allows an SRPP member, assigned by the Product Development Review Council Chairperson, to participate in interviewing the grant applicant as part of the business operations and management due diligence and/or intellectual property review process conducted by CPRIT contractors. The assigned SRPP member may communicate directly with the applicant during the due diligence interview to seek information that will assist the Product Development Review Council’s grant evaluation. All grant applicants who reach the due diligence phase of the product development review process will be subject to this proposed exception and may communicate with the assigned SRPP member without violating §702.19. The Institute will maintain records of SRPP members assigned to participate in the due diligence interviews with grant applicants.

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Cancer Prevention and Research Institute of Texas

Adopted Rules

Amending 25 TAC §703.10 to require that grant recipients include certain information when referencing funding in a publication

CHAPTER 703. GRANTS FOR CANCER PREVENTION AND RESEARCH25 TAC §703.10OVERVIEWThe Cancer Prevention and Research Institute of Texas (“CPRIT” or “the Institute”) proposes an amendment to 25 Texas Administrative Code §703.10(c)(3) requiring a grant recipient to include applicable CPRIT grant identification numbers when acknowledging CPRIT funding in publications. Grammar and punctuation was corrected for clarity.BACKGROUND AND JUSTIFICATION The proposed amendment requires the grant recipient to include all applicable grant award identification number(s) when acknowledging Institute grant funding. CPRIT requires grant recipients to explicitly recognize the Institute in any publication that reports information developed with CPRIT grant funds, including scholarly publications. The change to require the grant award identification number(s) in the acknowledgement improves the Institute’s ability to track the outcome of its funded grant projects.Section 703.10(c)(3) requires CPRIT’s grant contracts to include terms relating to a grant recipient’s acknowledgement of CPRIT funding in a publication. The proposed amendment clarifies that effective September 1, 2021, the acknowledgment of CPRIT funding must include the applicable grant identification number of every Institute funded grant that contributes to a published work. The change would allow the Institute greater ease when tracking grant funding in published scholarly articles or journals.

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Cancer Prevention and Research Institute of Texas

Adopted Rules

Amending 25 TAC §703.3 to clarify roles of key personnel in the grant application process

CHAPTER 703. GRANTS FOR CANCER PREVENTION AND RESEARCH25 TAC §703.3OVERVIEWThe Cancer Prevention and Research Institute of Texas (“CPRIT” or “the Institute”) adopts the amendments to 25 TAC §703.3(b)(4) without changes to the proposed amendments as published in the December 4, 2020, issue of the Texas Register (45 TexReg 8726); therefore, the rules will not be republished. The amendment relates to Request for Applications content and reimbursement of a grant recipient’s professional association dues and fees.SUMMARY OF CHANGES The amendment to §703.3(b)(4) clarifies that in the Request for Applications, the Institute may specify the minimum level of effort, if any, that a Principal Investigator, co-Principal Investigator, or other specified key personnel must maintain for the grant project. 

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Cancer Prevention and Research Institute of Texas

Adopted Rules

Amending 25 TAC §703.26 to clarify reimbursement limitations for a grant recipient’s professional association membership fees

CHAPTER 703. GRANTS FOR CANCER PREVENTION AND RESEARCH25 TAC §703.26OVERVIEWThe Cancer Prevention and Research Institute of Texas (“CPRIT” or “the Institute”) adopts the amendments to 25 TAC §703.26(e)(12) without changes to the proposed amendments as published in the December 4, 2020, issue of the Texas Register (45 TexReg 8726); therefore, the rules will not be republished. The amendment relates to Request for Applications content and reimbursement of a grant recipient’s professional association dues and fees.SUMMARY OF CHANGES The change to §703.26(e)(12) clarifies that professional association membership fees or dues for an individual employed by a grant recipient are not allowable for reimbursement. However, membership fees or dues paid by the grant recipient for the entity’s membership in business, technical, and professional organizations may be an allowable expense.

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Texas State Board of Pharmacy

Notices

Following official rule review, Board re-adopts rules regarding pharmacy services, classes of pharmacies, and pharmacy technicians

Title 22, Part 15Pursuant to the Texas Government Code §2001.039, the Texas State Board of Pharmacy adopts the review of the following sections: Chapter 291, (§§291.120, 291.121, 291.123, 291.125, 291.127, 291.129, 291.131, 291.133), concerning Pharmacies (Services Provided by Pharmacies);Chapter 291, (§§291.151, 291.153), concerning Pharmacies (Other Classes of Pharmacy); Chapter 297, (§§297.1 – 297.11), concerning Pharmacy Technicians and Pharmacy Technician Trainees.The proposed review was published in the December 11, 2020, issue of the Texas Register (45 TexReg 8886).

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 for the first half of January 2021

OVERVIEWDuring the first half of January 2021, 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 this week’s 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.

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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 for the second half of January 2021

OVERVIEWDuring the second half of January 2021, 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 this week’s 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.

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Texas Health and Human Services Commission

In Addition

HHSC will conduct a public hearing on proposed payments rates for HCBS – Adult Mental Health Supported Home Living and YES Waiver In-Home Respite

OVERVIEWThe Texas Health and Human Services Commission (HHSC) will conduct a public hearing on March 22, 2021, at 9:00 a.m., to receive public comments on the proposed payment rates for Home and Community-Based Services – Adult Mental Health (HCBS-AMH) Supported Home Living (SHL) and Youth Empowerment Services (YES) Waiver In-Home Respite.HHSC proposes to convert the HCBS-AMH SHL hourly payment rate to a 15-minute rate of $5.60, effective April 1, 2021, and convert the YES Waiver In-Home Respite rate to a 15-minute rate of $5.22. Transitioning of the HCBS-AMH SHL and YES Waiver In-home Respite rates to 15 minutes is necessary to implement electronic visit verification.HEARING DETAILSThis hearing was originally scheduled for February 17, 2021, but was cancelled due to a weather-related office closure.Due to the declared state of disaster stemming from COVID-19, this hearing will be conducted online only. Physical entry to the hearing will not be permitted. To join the hearing from your computer, tablet, or smartphone, register for the hearing in advance using the following link: https://attendee.gotowebinar.com/register/6336540899642733071. After registering, you will receive a confirmation email containing information about joining the hearing. You can also dial in using your phone at (562) 247-8422, access code 818-813-843.If you are new to GoToWebinar, please download the GoToMeeting app at https://global.gotomeeting.com/install/626873213 before the hearing starts.PUBLIC COMMENT Written comments regarding the proposed payment rates may be submitted in lieu of, or in addition to, oral testimony until 5:00 p.m. the day of the hearing. Relevant addresses are listed in this week’s edition of the Texas Register (46 Tex Reg 1533). 

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