Texas Register Table of Contents
The Governor
Appointments Re:
The Governor appointed one individual to the Texas Board of Physical Therapy Examiners and one individual to the Texas Board of Occupational Therapy Examiners.
Appointments for May 4, 2022
Appointed to the Texas Board of Physical Therapy Examiners for a term to expire January 31, 2023:
- Omar Palomin, D.P.T. of McAllen, Texas (replacing Barbara L. Sanders, Ph.D. of Austin, who resigned).
Appointed to the Texas Board of Occupational Therapy Examiners for a term to expire February 1, 2023:
- Estrella Barrera of Austin, Texas (replacing DeLana K. Honaker, Ph.D. of Amarillo, who is deceased).
Texas Health and Human Services Commission
Proposed Rules Re:
New 1 TAC §353.8, describing certification and appeal requirements for certain Managed Care Organizations.
CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER A. GENERAL PROVISIONS
1 TAC §353.8
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §353.8, concerning Certification of Managed Care Organizations Prior to Contract Awards.
BACKGROUND AND JUSTIFICATION
The proposal implements Texas Government Code, §533.0035, added by Senate Bill 1244, 87th Legislature, Regular Session, 2021.
The proposed new rule sets out the process HHSC will use to determine whether a managed care organization (MCO) satisfies the certification requirements under Texas Government Code, §533.0035. The proposed new rule sets forth that HHSC does not award a contract to an MCO that does not receive certification and sets forth an appeal process for an MCO to appeal a denial of certification by HHSC.
SECTION-BY-SECTION SUMMARY
- Proposed new §353.8(b) sets forth that HHSC will certify an MCO following the evaluation of proposals submitted in response to a solicitation. The certification does not impact the MCO’s final score, but failure to obtain certification results in no further consideration of the MCO for the contract award.
- Proposed new §353.8(c) sets forth that in its certification determination, HHSC may review the material submitted by the MCO in response to the solicitation; materials related to the MCO’s past performance in any state, including materials required to be monitored by a state’s managed care program under 42 Code of Federal Regulations §438.66(c); and any additional information and assurances requested by HHSC from the MCO for purposes of the certification determination.
- The proposed new §353.8(d) sets forth that HHSC provides notice of approval or denial of certification by electronic mail to the MCO and that a notice of denial sets forth the reasons for the denial of certification. Proposed new §353.8(d) also provides that an MCO that is denied certification may appeal the denial by submitting an appeal to the solicitation’s sole point of contact no later than 10 business days after the date HHSC transmits the notice of denial of certification.
- Proposed new §353.8(e) sets forth that the MCO’s appeal must specifically address the reasons for the denial of the certification as stated in the denial notice and precisely state the argument, authorities, and evidence the MCO offers in support of its appeal.
- Proposed new §353.8(f) sets forth how HHSC resolves an appeal by dismissing the appeal as untimely, upholding the denial of certification, or reversing the denial of certification and certifying the MCO.
- Proposed new §353.8(g) sets forth that after the expiration of the appeal period and the resolution of any pending appeals, MCOs that obtained the required certification will proceed to the next phase of the contract award process.
- Proposed new §353.8(h) sets forth that HHSC’s determination not to certify an MCO is not a contested case proceeding under the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001.
Adopted Rules Re:
Repealing 1 TAC §355.8068, which concerns local provider participation fund reporting and reimbursement rates for medicaid hospital services.
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 4. MEDICAID HOSPITAL SERVICES
1 TAC §355.8068
OVERVIEW
The Texas Health and Human Services Commission (HHSC) adopts the repeal of §355.8068, concerning Local Provider Participation Fund Reporting in Subchapter J, Division 4 and adopts new Subchapter L comprised of §355.8701, concerning Purpose; §355.8702, concerning Definitions; §355.8703, concerning Applicability; §355.8704, concerning Reporting and Monitoring; §355.8705, concerning Post-Determination Review; and §355.8706, concerning State and Federal Reporting.
The repeal of §355.8068 and new §§355.8702, 355.8703, and 355.8706 are adopted without changes as published in the January 14, 2022, issue of the Texas Register (47 Tex Reg 74). The repeal and these new rules will not be republished.
Sections 355.8701, 355.8704, and 355.8705 are adopted with changes to the proposed text as published in the January 14, 2022, issue of the Texas Register (47 Tex Reg 74). These new rules will be republished.
BACKGROUND AND JUSTIFICATION
The purpose of these new rules is to implement the requirements of the 2022-23 General Appropriations Act (GAA), Senate Bill (S.B.) 1, 87th Legislature, Regular Session (Article II, HHSC, Rider 15(b)), which requires HHSC to create an annual report to include: information on all mandatory payments to a Local Provider Participation Fund (LPPF) and all uses for such payments, including the amount of funds from an LPPF for each particular use; the total amount of intergovernmental transfers used to support Medicaid; the total amount of certified public expenditures used to support Medicaid; a summary of any survey data collected by HHSC to provide oversight and monitoring of the use of local funds in the Medicaid program; and all financial reports submitted to the Centers for Medicare and Medicaid Services (CMS).
The repeal of §355.8068, concerning Local Provider Participation Fund Reporting, and new §§355.8701 – 355.8706, concerning Local Funds Monitoring, are necessary to comply with the requirements of 42 CFR §433.51, Public Funds as the State Share of Financial Participation, 42 CFR §433.68, Permissible Health Care-Related Taxes, 42 CFR §433.74, Reporting Requirements, and §§1903(w)(1)(A)(i), 1903(w)(1)(A)(i)(I), and 1903(w)(1)(A)(ii) of the Social Security Act.
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER L. LOCAL FUNDS MONITORING
1 TAC §§355.8701 – 355.8706
OVERVIEW
The Texas Health and Human Services Commission (HHSC) adopts the repeal of §355.8068, concerning Local Provider Participation Fund Reporting in Subchapter J, Division 4 and adopts new Subchapter L comprised of §355.8701, concerning Purpose; §355.8702, concerning Definitions; §355.8703, concerning Applicability; §355.8704, concerning Reporting and Monitoring; §355.8705, concerning Post-Determination Review; and §355.8706, concerning State and Federal Reporting.
The repeal of §355.8068 and new §§355.8702, 355.8703, and 355.8706 are adopted without changes as published in the January 14, 2022, issue of the Texas Register (47 Tex Reg 74). The repeal and these new rules will not be republished.
Sections 355.8701, 355.8704, and 355.8705 are adopted with changes to the proposed text as published in the January 14, 2022, issue of the Texas Register (47 Tex Reg 74). These new rules will be republished.
BACKGROUND AND JUSTIFICATION
The purpose of these new rules is to implement the requirements of the 2022-23 General Appropriations Act (GAA), Senate Bill (S.B.) 1, 87th Legislature, Regular Session (Article II, HHSC, Rider 15(b)), which requires HHSC to create an annual report to include: information on all mandatory payments to a Local Provider Participation Fund (LPPF) and all uses for such payments, including the amount of funds from an LPPF for each particular use; the total amount of intergovernmental transfers used to support Medicaid; the total amount of certified public expenditures used to support Medicaid; a summary of any survey data collected by HHSC to provide oversight and monitoring of the use of local funds in the Medicaid program; and all financial reports submitted to the Centers for Medicare and Medicaid Services (CMS).
The repeal of §355.8068, concerning Local Provider Participation Fund Reporting, and new §§355.8701 – 355.8706, concerning Local Funds Monitoring, are necessary to comply with the requirements of 42 CFR §433.51, Public Funds as the State Share of Financial Participation, 42 CFR §433.68, Permissible Health Care-Related Taxes, 42 CFR §433.74, Reporting Requirements, and §§1903(w)(1)(A)(i), 1903(w)(1)(A)(i)(I), and 1903(w)(1)(A)(ii) of the Social Security Act.
In Addition Re:
Public Hearing Notice: SB 1648 Specialty Provider
OVERVIEW
The Health and Human Services Commission (HHSC) is to implement Senate Bill (S.B.) 1648, 87th Legislature, Regular Session, 2021, that amended Texas Government Code §533.038(g) and added new subsections (h) and (i) to §533.038. HHSC proposes amendments to Title 1, Part 15, Texas Administrative Code (TAC) §353.4, concerning Managed Care Organization Requirements Concerning Out-of-Network Providers; and 1 TAC §353.7, concerning Coordination of Benefits with Primary Health Insurance Coverage.
HEARING DETAILS
May 16, 2022
11:00 a.m. – 12:00 p.m.
Virtual Public Hearing Access:
Due to the declared state of disaster stemming from COVID-19, this public hearing will be conducted online using GotoWebinar only. 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/5699627906607234829. The webinar ID is: 195-070-731. There is not a physical location for this public hearing.
This public hearing will be archived. Members of the public may view a recording of this meeting at https://texashhsmeetings.org/HHSWebcast after the meeting.
PUBLIC COMMENTS
The Texas HHSC welcomes public comments pertaining to an amendment to chapter 353 of the Texas Administrative Code. The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on May 16, 2022, at 11:00 a.m. to solicit feedback and receive comment on the amendment of §353.4 and §353.7 of Part 15 of Title 1 of the Texas Administrative Code.
This amended rule will direct managed care organizations (MCOs) to allow a Medicaid managed care recipient with complex medical needs to continue receiving care from a specialty provider with whom the recipient has an established relationship, regardless of whether the recipient has primary health benefit plan coverage in addition to Medicaid coverage; and to allow the provider to continue to be reimbursed at the fee-for-service rate until (1) an alternate reimbursement agreements, including a single-case agreement, has been reached; (2) the member or member’s legally authorized representative agree to select an in-network specialty provider; or (3) the member is no longer enrolled in the MCO. The amendment to the rule also adds that if a member wants to remain under the care of a Medicaid enrolled specialty provider that is not in the MCO’s network, the MCO must make a good-faith effort to negotiate a single-case agreement with that out-of-network specialty provider using a simple, timely, and efficient process developed by the MCO. Lastly, the amendment clarifies that a single-case agreement entered into under this provision is not considered accessing an out-of-network provider for the purposes of Medicaid MCO network adequacy requirements.
Attendees who would like to provide public comment or testimony should see the Public Comment section below.
Agenda
- Welcome and call to order
- Public hearing to receive comments from interested persons concerning amendment of §353.4 and §353.7 of the Texas Administrative Code
- Public comments
- Adjourn
The Texas HHSC welcomes public comments pertaining to amendment of §353.4 and §353.7 of the Texas Administrative Code. Members of the public who would like to provide public comment may choose from the following options:
- Oral comments provided virtually: Members of the public must pre-register to provide oral comments virtually during the public hearing by completing a Public Comment Registration form at https://texashhsmeetings.org/SB1648_PCReg_May2022 no later than 9:00 a.m., May 16, 2022. Please mark the correct box on the Public Comment Registration form and provide your name, either the organization you are representing or that you are speaking as a private citizen, and your direct phone number. If you have completed the Public Comment Registration form, you will receive an email the day before the public hearing with instructions for providing virtual public comment. Public comment is limited to three minutes. Each speaker providing oral public comments virtually must ensure their face is visible and their voice audible to the other participants while they are speaking. Each speaker must state their name and on whose behalf they are speaking (if anyone). If you pre-register to speak and wish to provide a handout before the public hearing, please submit an electronic copy in accessible PDF format that will be distributed to the appropriate HHS staff. Handouts are limited to two pages (paper size: 8.5″ by 11″, one side only). Handouts must be emailed to managed_care_initiatives@hhs.texas.gov immediately after pre-registering, but no later than 9:00 a.m., May 16, 2022, and include the name of the person who will be commenting. Do not include health or other confidential information in your comments or handouts. Staff will not read handouts aloud during the public hearing, but handouts will be provided to the appropriate HHS staff.
Members of the public may also use the GotoWebinar Q&A section to submit a request to provide oral public comment only. The request must contain your name, either the organization you are representing or that you are speaking as a private citizen, and your direct phone number. Do not include confidential information or protected health information in comments.
- Written comments: A member of the public who wishes to provide written public comments must email the comments to managed_care_initiatives@hhs.texas.gov no later than 9:00 a.m., May 16, 2022. Written comments may also be submitted by U.S. mail to the Texas Health and Human Services Commission, Attention: Heather Kuhlman, STAR Kids Lead Policy Specialist, Medicaid CHIP Services Division Mail Code H600, 701 West 51st Street, Austin, Texas 78751. Please include your name and the organization you are representing or that you are speaking as a private citizen. Written comments are limited to two pages (paper size: 8.5″ by 11″, one side only). Do not include health or other confidential information in your comments. Staff will not read written comments aloud during the public hearing, but comments will be provided to the appropriate HHS staff.
Public Hearing on Proposed Amendments to Rule — Reimbursement Methodology for School Health and Related Services (SHARS)
OVERVIEW
May 18, 2022 – 1:00 p.m.
Webcasting Available
The Texas Health and Human Services Commission (HHSC) will conduct a public hearing to receive public comments on the proposed Title 1, Texas Administrative Code (TAC) §355.8443, concerning the Reimbursement Methodology for School Health and Related Services (SHARS).
HEARING DETAILS
Due to the declared state of disaster stemming from COVID-19, this hearing will be conducted online only. To join the hearing from your computer, tablet, or smartphone, register for the hearing in advance using the following link:
Registration URL: https://attendee.gotowebinar.com/register/8182888113535930126 Webinar ID: 238-233-203 Phone number for Phone Audio Option: 1 (562) 247-8422
Phone Access Code: 798-638-786 Audio PIN: (Please note, in order to receive a PIN to speak, registration is required.)
The hearing will be held in compliance with Texas Human Resources Code §32.0282, which requires public notice of and hearings on proposed Medicaid reimbursements. A recording of the hearing will be archived and can be accessed on demand at https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings.
BACKGROUND AND JUSTIFICATION
The proposed rule update to TAC §355.8443 adds text to allow SHARS providers to bill and receive reimbursement for allowable audiology services provided to Medicaid-eligible children as prescribed in a plan created under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794). House Bill (H.B.) 706, 86th Legislature, Regular Session, 2019, required HHSC to adopt rules necessary to implement Texas Education Code Section 38.033 SHARS Program, titled “Seizure Recognition and Related First Aid Training” in consultation with the Texas Education Agency (TEA). Section 38.033 was added to the Texas Education Code by H.B. 706, effective September 1, 2019. This section was redesignated as Section 38.034 by H.B. 3607, 87th Legislature, Regular Session, 2021, titled “School Health and Related Services Program; Eligibility for Audiology Services.”
The proposal will also implement changes to increase the integrity of the program and allow for additional detail to be collected to increase the specificity of submitted data related to services reimbursed through the SHARS program for both individual recipients and specific services. This rule update adds detail to increase transparency and clarity in definitions and processes for the SHARS program and includes a new section on informal review processes and further information on appeals.
Public Notice: Heightened Scrutiny Review for Medicaid Home and Community Based Services Settings
OVERVIEW
The Texas Health and Human Services Commission (HHSC) announces its intent to submit an updated list of certain Medicaid settings to the Centers for Medicare & Medicaid Services (CMS) for heightened scrutiny review, as described in 42 Code of Federal Regulations (CFR) §441.301(c)(5)(v), to demonstrate that the settings are eligible for delivery of home and community-based services (HCBS). The updated heightened scrutiny list will be posted for public comment from May 13, 2022, through June 13, 2022.
BACKGROUND AND JUSTIFICATION
In March 2014, CMS issued federal regulations at 42 CFR §441.301(c)(4) that added requirements for settings where Medicaid HCBS are provided. The regulations require that a Medicaid HCBS setting be selected by the person receiving Medicaid HCBS. Medicaid HCBS settings must also be integrated in and support the person’s full access to the community. CMS has given states until March 17, 2023 to bring Medicaid HCBS settings into compliance with the regulations.
CMS presumes that certain types of Medicaid HCBS settings have institutional or isolating qualities.
- Prong 1 settings: Located in a hospital, nursing facility, intermediate care facility for individuals with an intellectual disability or related condition (ICF/IID) or institution for mental disease (IMD).
- Prong 2 settings: Located on the grounds of, or immediately adjacent to, a public hospital, nursing facility, ICF/IID or IMD.
- Prong 3 settings: Have the effect of isolating people from the broader community of people who do not receive HCBS.
On September 24, 2021, HHSC announced its intent to submit a list of all assisted living facilities (ALFs) participating in the STAR+PLUS HCBS program to CMS for heightened scrutiny review because HHSC determined that ALFs have institutional or isolating qualities.
HHSC assessed each ALF on this list for compliance with the federal regulations and removed some ALFs from the list because they no longer provide STAR+PLUS HCBS services. The updated list also includes a summary of non-compliance issues and remediation activities necessary for the ALFs to be in compliance with the federal regulations.
The updated list and accompanying information are available on the HHSC website at https://www.hhs.texas.gov/doing-business-hhs/provider-portals/long-term-care-providers/resources/home-community-based-services-hcbs.
Copy of Updated Heightened Scrutiny List. Interested parties may obtain a free copy of the updated list and accompanying information by contacting Rachel Neely, Senior Policy Advisor, by U.S. mail, telephone, fax, or by email at the addresses and numbers below. Copies of the list and accompanying information will be available for review at the local county offices of HHSC.
Texas Board of Nursing
Adopted Rules Re:
CHAPTER 228. PAIN MANAGEMENT
22 TAC §228.1
OVERVIEW
The Texas Board of Nursing (Board) adopts amendments to §228.1, relating to Standards of Practice, with changes to the proposed text published in the January 7, 2022, issue of the Texas Register (47 Tex Reg 13). The rule will be republished.
The Board received one joint comment on the proposal. In response to the written comments on the published proposal, the Board has made changes to §228.1(i)(1) and (2) as adopted. These changes, however, do not materially alter issues raised in the proposal, introduce new subject matter, or affect persons other than those previously on notice. Further, the Board believes these changes address the commenters’ concerns.
BACKGROUND AND JUSTIFICATION
In April 2018, and in accordance with the Government Code §2001.039, the Board filed a notice of intention to review and consider for re-adoption, re-adoption with amendments, or repeal, §228.1 contained in Title 22, Part 11, of the Texas Administrative Code, pursuant to the 2015 rule review plan adopted by the Board at its July 2015 meeting. The proposed rule review was published in the Texas Register on April 6, 2018, (43 TexReg 2167) for public comment. Written comments were received from the APRN Alliance (Alliance). The Board considered the Alliance’s written comments at its July 2018 meeting and charged the Board’s Advanced Practice Nursing Advisory Committee (APNAC) with reviewing the written comments and making recommendations to the Board regarding amendments to §228.1.
The APNAC met on December 10, 2018, to consider the Board’s charge. At its October 2021 Board meeting, the Board considered the Alliance’s written comments; the APNAC’s recommendations regarding amendments to §228.1; and Staff’s recommendations regarding amendments to the rule. The Board decided to make some, but not all, of the Alliance’s suggested changes to the rule. The Board re-adopted §228.1 without changes in the November 26, 2021, edition of the Texas Register to complete the outstanding rule review. The Board then proposed separate rule amendments to §228.1 in the January 7, 2022, edition of the Texas Register to address the Alliance’s remaining comments.
In response to the Alliance’s written comments, as well as recent changes to the Occupations Code Chapter 168, the Board proposed amendments to subsection (i). Subsection (i) applies to pain management clinics, as that term is defined in the Occupations Code §168.001. The Occupations Code §168.201(c) requires the owner or operator of a pain management clinic to be on-site at the clinic at least 33% of the clinic’s total number of operating hours and to review at least 33% of the total number of patient files of the clinic, including the patient files of a clinic employee or contractor to whom authority for patient care has been delegated by the clinic. The current rule text applies these requirements to APRNs. However, the owner or operator of a pain management clinic, as defined by statute, does not include an APRN. Section 228.1 was originally enacted during the height of the operation of pill mills, and the Board received complaints involving clinics where APRNs were working without physician involvement, in some cases without any delegation agreement or physician collaboration. Requiring on-site presence and additional chart review was intended, at that time, to ensure appropriate delegation and collaboration in the interest of patient safety. Since the enactment of that provision, however, the Board has seen a reduction in pill mill activity due to increased enforcement efforts, federal regulation of schedule II medications, and increased awareness at both the state and federal level. Further, APRNs who prescribe are currently required by the Occupations Code Chapter 157 to meet prescriptive authority agreement and chart review requirements with their delegating physicians. Those requirements still apply to APRNs working in pain management clinics. Based upon these factors, the APNAC felt the requirements in §228.1 for additional chart review were unnecessarily duplicative. Further, the APNAC felt that requiring an APRN to be on-site with a physician at a pain management clinic more often than what was required by statute would be overly restrictive and unlikely to promote a safer patient environment. As such, the APNAC recommended striking subsections (i)(1) and (2) from the current rule. The Board agreed with the recommendations of the APNAC in this regard and proposed striking these subsections from the rule for these reasons.
Further, the Occupations Code §168.002 was amended in September 2019 by House Bill (HB) 3285 to eliminate the prior exemption from which subsection (i)(4) was derived. Under the prior law, a clinic owned or operated by an APRN who treated patients in the nurse’s area of specialty and who personally used other forms of treatment with the issuance of a prescription for a majority of the patient was exempt from the requirements of the chapter. HB 3285 eliminated that exemption from the statute. For consistency with this statutory change, the Board proposed eliminating (i)(4) from the rule in its entirety.
The Board also proposed minor editorial changes to subsection (i)(5) for additional clarity in the rule text.
The proposed amendments were published in the January 7, 2022, edition of the Texas Register, and the Board received one joint written comment from the Texas Medical Association and the Texas Pain Society regarding the proposed amendments. The Board considered the written comments at its April 2022 meeting and decided to make changes to the rule text as adopted to address the written comments.
The adopted amendments to §228.1(i) eliminate existing paragraphs (1), (2), and (4) from the subsection and re-arrange the remainder of the subsection accordingly. The adopted amendment to newly numbered §228.1(i)(1) requires an APRN to ensure that s/he is in compliance with all other requirements for delegation of prescriptive authority for medications as set forth in Board rule and the Occupations Code Chapter 157. The adopted amendment to newly numbered §228.1(i)(2) clarifies that an APRN cannot own or operate a pain management clinic, as that term is defined by the Occupations Code Chapter 168 and any applicable rules promulgated by the Texas Medical Board.
SUMMARY OF COMMENTS
The Board received one joint comment from the Texas Medical Association and the Texas Pain Society. The commenters generally state that they that have no opposition to the proposed amendments and agree they are consistent with the underlying statutory law. However, the commenters state that they have two suggestions for clarity in the rule.
First, the commenters recommend adding a reference to “the Occupations Code” for clarification in proposed §228.1(i)(1). Specifically, the commenters recommend including “and the Occupations Code” after the phrase “Board rule”. The commenters state that it’s important to re-iterate that the Occupations Code controls the requirements for delegation for prescriptive authority to prevent unnecessary confusion or noncompliance with the law.
Second, the commenters recommend striking the last sentence from proposed amended §228.1(i)(2) as it may cause unintended confusion since there is no exemption or other way to fall outside the certification requirement for a pain management clinic that applies to an APRN after the passage of House Bill 3285 (86th Legislative Session). The commenters alternatively suggested wording for clarification if the sentence is not eliminated entirely.
Agency Response to Comments: The Board generally agrees with the commenters’ suggestions and has made changes to the rule text as adopted in order to improve the section’s clarity. In addition to the recommended language of the commenters, the Board has amended §228.1(i)(1) as adopted to include specific reference to the Occupations Code Chapter 157, which contains the statutory requirements for the delegation of prescriptive authority in this state, in lieu of a more general reference to the Occupations Code, as suggested by the commenters. Further, with regard to adopted §228.1(i)(2), the Board has eliminated the second sentence in the proposed paragraph in its entirety, as recommended by the commenters. The Board has also added clarifying language referencing the Occupations Code Chapter 168, which contains the statutory definition of a pain management clinic in this state, and rules promulgated by the Texas Medical Board that refer to the definition of a pain management clinic and related certification requirements.
The Board finds these changes address the concerns of the commenters and add appropriate clarity to the rule as adopted.