Texas Register May 27, 2022 Volume: 47 Number: 21

Texas Register Table of Contents

1 Texas Optometry Board
- - 1.0.1 Proposed Rules Re:
    - 1.0.1.1 New 22 TAC §273.17, requiring that applicants for licensure and renewal of licensure provide proof of successful completion of a cardiopulmonary resuscitation (CPR) or basic life support (BLS) course beginning in January 1, 2023.
  - 1.0.2 Adopted Rules Re:
2 Health and Human Services Commission
3 State Board of Dental Examiners
- - 3.0.1 Adopted Rules Re:
    - 3.0.1.1 Amending 22 TAC §108.7 to allow for the provision of teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care.
    - 3.0.1.2 New 22 TAC §180.16, describing professional standards when providing teledentistry dental services.
4 Texas Board of Nursing
- - 4.0.1 Adopted Rules Re:
    - 4.0.1.1 Amending 22 TAC §217.6 to exempt certain military spouse applicants from paying late fees and fines associated with a reactivation application.
5 Texas Department of Insurance
- - 5.0.1 Adopted Rules Re:
    - 5.0.1.1 New 28 TAC §§21.5501 – 21.5503, describing requirements for machine-readable files with regard to rate information for covered health care services and supplies; unique billed charges and allowed amounts for covered services provided by out-of-network providers; and negotiated rates for prescription drugs.
6 Department of State Health Services
- - 6.0.1 In Addition Re:
    - 6.0.1.1 Licensing Actions for Radioactive Materials
    - 6.0.1.2 Licensing Actions for Radioactive Materials

Texas Optometry Board

Proposed Rules Re:

New 22 TAC §273.17, requiring that applicants for licensure and renewal of licensure provide proof of successful completion of a cardiopulmonary resuscitation (CPR) or basic life support (BLS) course beginning in January 1, 2023.

CHAPTER 273. GENERAL RULES
22 TAC §273.17

OVERVIEW

The Texas Optometry Board (TOB) proposes new §273.17 Emergency Management. This proposed new rule requires all initial applicants for licensure provide proof of successful completion of a cardiopulmonary resuscitation (CPR) or basic life support (BLS) course prior to receiving a license beginning in January 1, 2023. This proposed new rule also requires all active licensees to provide proof of successful completion of a CPR or BLS course prior to the renewal of license each cycle beginning in January 1, 2023. This new rule will ensure that active licensees are prepared to manage an emergency situation. Optometry students are already required to be certified in either CPR or BLS and approximately half of the current active licensee population is already CPR or BLS certified.

Adopted Rules Re:

Amending 22 TAC §273.5 to replace “Council on Optometric Education of the American Optometric Association (COEAOA)” with “Accreditation Council on Optometric Education (ACOE)” as well as remove the “in-state” college of optometry requirement.

CHAPTER 273. GENERAL RULES
22 TAC §273.5

OVERVIEW

The Texas Optometry Board (Board) adopts amendments to §273.5 with changes to the proposed text published in the March 25, 2022, issue of the Texas Register (47 Tex Reg 1583). The word “and” was added at the end of subsection (b)(3) to clarify that all four paragraphs under subsection (b) are the duties and responsibilities of the dean. This rule will be republished.

The adopted amendments in §273.5(a)(1) replace “Council on Optometric Education of the American Optometric Association (COEAOA)” with “Accreditation Council on Optometric Education (ACOE)”. The adopted amendments in §273.5(g)(1) – (2) remove the “in-state” college of optometry requirement.

New 22 TAC §277.13, updating the investigation process for glaucoma complaints pursuant to §351.2034 of the Optometry Act.

CHAPTER 277. PRACTICE AND PROCEDURE
22 TAC §277.13

OVERVIEW

The Texas Optometry Board (Board) adopts new §277.13, concerning the investigation process for glaucoma complaints pursuant to §351.2034 of the Optometry Act. The Texas Optometry Board has collaborated with the Texas Medical Board as required for finalization of this rule.

Rule 277.13 is adopted with technical changes to the proposed text published in the March 25, 2022, issue of the Texas Register (47 Tex Reg 1584). This rule will be republished.

SECTION-BY-SECTION SUMMARY

Section §277.13(a) – Change “board” to “Board”
Section §277.13(c) – Added a sentence to clarify process but did not change process
“The Case Review Consultant shall have access to the initial investigation materials.”; Removed a comma after “a, qualified physician”
Section §277.13(d)(2) – Removed “relevant”
Section §277.13(f) – Added “If”
Section §277.13(g) – Added “If”; removed “relevant”; changed “cases” to “complaints”
Section §277.13(h) – Changed “that” to “who”

New 22 TAC §277.14, outlining the process for Complaints Resulting From Glaucoma Treatment – Use of Case Review Consultant and Expert Panel, pursuant to §351.2034 of the Optometry Act.

CHAPTER 277. PRACTICE AND PROCEDURE
22 TAC §277.14

OVERVIEW

The Texas Optometry Board (Board) adopts new §277.14, concerning the process for Complaints Resulting From Glaucoma Treatment – Use of Case Review Consultant and Expert Panel, pursuant to §351.2034 of the Optometry Act. The Texas Optometry Board has collaborated with the Texas Medical Board as required for finalization of this rule.

Section 277.14 is adopted with technical non-substantive changes to the proposed text published in the March 25, 2022, issue of the Texas Register (47 Tex Reg 1585). This rule will be republished.

SECTION-BY-SECTION SUMMARY

Section §277.14(a) – Capitalized “Optometric Glaucoma Specialist”
Section §277.14(b)(1) – Inserted “Is a”; inserted “who has”; deleted “and”
Section §277.14(b)(2) – Changed “Have” to “Has”
Section §277.14(b)(4) – Inserted “neither”; inserted “or”; deleted “nor”
Section §277.14(c) – Deleted the comma between “contracted” and “fee”

Health and Human Services Commission

Withdrawn Rules Re:

Withdrawing 26 TAC §570.1, which concerned the implementation of certain provider rules during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER A. INTRODUCTION
26 TAC §570.1

OVERVIEW

The Health and Human Services Commission withdraws proposed new §570.1, which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Withdrawing 26 TAC §§570.101, 570.103, 570.105, 570.107, 570.109, which described requirements for assisted living facilities during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER B. ASSISTED LIVING FACILITIES
26 TAC §§570.101, 570.103, 570.105, 570.107, 570.109

The Health and Human Services Commission withdraws proposed new §§570.101, 570.103, 570.105, 570.107, and 570.109, which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Withdrawing 26 TAC §§570.201, 570.203, 570.205, 570.207, 570.209, 570.211, which outlined requirements for day activity and health services during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER C. DAY ACTIVITY AND HEALTH SERVICES
26 TAC §§570.201, 570.203, 570.205, 570.207, 570.209, 570.211

OVERVIEW

The Health and Human Services Commission withdraws proposed new §§570.201, 570.203, 570.205, 570.207, 570.209 and 570.211, which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Withdrawing 26 TAC §§570.301 – 570.303, 570.305, 570.307, 570.309, 570.311, 570.313, 570.315, which described requirements for home and community support services agencies during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER D. HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
DIVISION 1. ALL HCSSAS EXCEPT HOSPICE INPATIENT UNITS
26 TAC §§570.301 – 570.303, 570.305, 570.307, 570.309, 570.311, 570.313, 570.315

OVERVIEW

The Health and Human Services Commission withdraws proposed new §§570.301 – 570.303, 570.305, 570.307, 570.309, 570.311, 570.313, and 570.315, which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Withdrawing 26 TAC §§570.317 – 570.319, 570.321, 570.323, 570.329, which sought to implement standards for hospice agencies operating an inpatient facility during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER D. HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
DIVISION 2. HOSPICE AGENCIES OPERATING AN INPATIENT FACILITY
26 TAC §§570.317 – 570.319, 570.321, 570.323, 570.329

OVERVIEW

The Health and Human Services Commission withdraws proposed new §§570.317 – 570.319, 570.321, 570.323, and 570.329, which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Withdrawing 26 TAC §§570.401, 570.403, 570.405, 570.407, 570.409, 570.411, which detailed standards for prescribed pediatric extended care centers during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER E. PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
26 TAC §§570.401, 570.403, 570.405, 570.407, 570.409, 570.411

OVERVIEW

The Health and Human Services Commission withdraws proposed new §§570.401, 570.403, 570.405, 570.407, 570.409, and 570.411, which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Withdrawing 26 TAC §§570.501, 570.503, 570.505, 570.507, 570.509, 570.511, 570.515, 570.517, which outlined requirements for nursing facilities during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER F. NURSING FACILITIES
26 TAC §§570.501, 570.503, 570.505, 570.507, 570.509, 570.511, 570.515, 570.517

OVERVIEW

The Health and Human Services Commission withdraws proposed new §§570.501, 570.503, 570.505, 570.507, 570.509, 570.511, 570.515, and 570.517, which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Withdrawing 26 TAC §§570.601, 570.603, 570.605, 570.607, 570.609, which described requirements for Intermediate Care Facilities for Individuals with and Intellectual Disability or Related Conditions (ICF/IIDs) during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER G. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
26 TAC §§570.601, 570.603, 570.605, 570.607, 570.609

OVERVIEW

The Health and Human Services Commission withdraws proposed new §§570.601, 570.603, 570.605, 570.607, and 570.609, which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Withdrawing 26 TAC §§570.701, 570.703, 570.705, 570.707, 570.709, which provided standards for home and community-based services during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER H. HOME AND COMMUNITY-BASED SERVICES
26 TAC §§570.701, 570.703, 570.705, 570.707, 570.709

OVERVIEW

The Health and Human Services Commission withdraws proposed new §§570.701, 570.703, 570.705, 570.707, and 570.709 which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Withdrawing 26 TAC §§570.801 – 570.803, 570.805, 570.807, which detailed requirements for a Texas Home Living provider during a contagious disease outbreak, epidemic, or pandemic.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC
SUBCHAPTER I. TEXAS HOME LIVING
26 TAC §§570.801 – 570.803, 570.805, 570.807

OVERVIEW

The Health and Human Services Commission withdraws proposed new §§570.801 – 570.803, 570.805, and 570.807 which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7709).

Adopted Rules Re:

Amending 1 TAC §§353.1302, 353.1304, 353.1306, 353.1307, 353.1309, 353.1311, 353.1315, 353.1317, 353.1320, 353.1322, to revise delivery system and provider payment initiatives for Medicaid Managed Care.

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

OVERVIEW

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

Sections 353.1302, 353.1304, 353.1306, 353.1307, 353.1309, 353.1315, and 353.1320 are adopted without changes to the proposed text as published in the March 18, 2022, issue of the Texas Register (47 Tex Reg 1337). The rules will not be republished.

Sections 353.1311, 353.1317, and 353.1322 are adopted with changes. These rules will be republished.

BACKGROUND AND JUSTIFICATION

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

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

On August 18, 2021, CMS and Texas met for the first time in compliance with STC 34. During the call, CMS stated that the DPPs were not approvable, specifically noting the aggregate size of the proposed programs and CMS’s purported belief that the amounts proposed were not actuarially sound. Texas requested a specific list of modifications required for each proposed DPP that would result in an approval. On August 20, 2021, CMS sent Texas a list of 19 issues, which can be grouped into five topics, and requested modifications for each program. HHSC and CMS met every two business days between August 20, 2021, and March 24, 2022, to work towards a resolution. The two entities exchanged multiple rounds of written modifications, questions, and responses. The written exchanges can be found posted to the HHSC website at: https://pfd.hhs.texas.gov/provider-finance-communications. CMS approval of DPP BHS and QIPP was received in November 2021, and approval of CHIRP, RAPPS, and TIPPS was received in March 2022. SFY 2023 preprints for all five programs, CHIRP, DPP BHS, QIPP, RAPPS, and TIPPS were submitted to CMS on March 1, 2022, and responses are in process.

Amending 26 TAC §558.303 to outline vaccine standards for a Home and Community Support Services Agency (HCSSA) to treat or mitigate the spread of a communicable disease.

CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
SUBCHAPTER C. MINIMUM STANDARDS FOR ALL HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
DIVISION 4. PROVISION AND COORDINATION OF TREATMENT SERVICES
26 TAC §558.303

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §558.303, concerning Standards for Possession of Sterile Water or Saline, Certain Vaccines or Tuberculin, and Certain Dangerous Drugs. The amendment to §558.303 is adopted without changes to the proposed text as published in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7707). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment is necessary to comply with Texas Health and Safety Code §142.0062(a), amended by House Bill 797, 87th Legislature, Regular Session, 2021, which requires HHSC to allow a Home and Community Support Services Agency (HCSSA) to purchase, store, or transport for administering any vaccine approved, authorized for emergency use, or otherwise permitted by the United States Food and Drug Administration to treat or mitigate the spread of a communicable disease.

New 26 TAC §570.2, outlining provider standards for long-term care during a public health emergency or disaster.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A PUBLIC HEALTH EMERGENCY OR DISASTER
SUBCHAPTER A. INTRODUCTION
26 TAC §570.2

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code Title 26, Part 1, new Chapter 570, consisting of §§570.2, 570.111, 570.113, 570.325, 570.327, 570.513, 570.514, 570.611, 570.613, 570.711, and 570.713, concerning Subchapter A, Introduction; Subchapter B, Assisted Living Facilities; Subchapter D, Home and Community Support Services Agencies; Subchapter F, Nursing Facilities; Subchapter G, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions; and Subchapter H, Home and Community-Based Services.

Proposed §§570.2, 570.111, 570.113, 570.325, 570.327, 570.513, 570.514, 570.611, 570.613, 570.711, and 570.713 are adopted with changes to the proposed text as published in the November 12, 2021, issue of the Texas Register (46 TexReg 7709). These rules will be republished.

Proposed §§570.1, 570.101, 570.103, 570.105, 570.107, 570.109, 570.201, 570.203, 570.205, 570.207, 570.209, 570.211, 570.301, 570.302, 570.303, 570.305, 570.307, 570.309, 570.311, 570.313, 570.315, 570.317, 570.318, 570.319, 570.321, 570.323, 570.329, 570.401, 570.403, 570.405, 570.407, 570.409, 570.411, 570.501, 570.503, 570.505, 570.507, 570.509, 570.511, 570.515, 570.517, 570.601, 570.603, 570.605, 570.607, 570.609, 570.701, 570.703, 570.705, 570.707, 570.709, 570.801, 570.802, 570.803, 570.805, and 570.807 are not proceeding to adoption at this time and are withdrawn elsewhere in this issue of the Texas Register.

BACKGROUND AND JUSTIFICATION

The new rules apply to Assisted Living Facilities (ALFs), Home and Community Support Services Agencies (HCSSAs), Nursing Facilities (NFs), Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICF/IIDs), and Home and Community-based Services (HCS) program providers during a public health emergency or disaster.

The new rules are necessary to comply with Texas Health and Safety Code, Chapter 260B, Right to Essential Caregiver Visits for Certain Residents, created by Senate Bill (S.B.) 25, 87th Legislature, Regular Session, 2021. Chapter 260B states that all residents of an ALF, NF or ICF/IID and individuals receiving services through an HCS program provider in a residence have the right to designate an essential caregiver and have essential caregiver visits. A facility or program provider may not prohibit in-person visitation with an essential caregiver, except for certain limited periods of time as provided in Chapter 260B.

The new rules are also necessary to comply with Texas Health and Safety Code, Chapter 260C, In-Person Visitation with Religious Counselor, created by S.B. 572, 87th Legislature, Regular Session, 2021. Chapter 260C protects the religious liberty of each individual or resident of an HCSSA, NF, or ALF by prohibiting a HCSSA, NF, or ALF from preventing a resident or client from receiving in-person visitation with a religious counselor during a public health emergency unless there is a federal law or a federal agency that prohibits in-person visitation during that period.

New 26 TAC §570.111, §570.113, detailing long-term care provider rules during a public health emergency or disaster for assisted living facilities.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A PUBLIC HEALTH EMERGENCY OR DISASTER
SUBCHAPTER B. ASSISTED LIVING FACILITIES
26 TAC §570.111, §570.113

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §570.325, §570.327, describing long-term provider care standards during a public health emergency for hospice agencies operating an inpatient facility.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A PUBLIC HEALTH EMERGENCY OR DISASTER
SUBCHAPTER D. HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
DIVISION 2. HOSPICE AGENCIES OPERATING AN INPATIENT FACILITY
26 TAC §570.325, §570.327

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §570.513, §570.514, detailing long-term care provider rules during a public health emergency or disaster for nursing facilities.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A PUBLIC HEALTH EMERGENCY OR DISASTER
SUBCHAPTER F. NURSING FACILITIES
26 TAC §570.513, §570.514

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §570.611, §570.613, outlining requirements for long-term care providers during a public health emergency or disaster in intermediate care facilities for individuals with an intellectual disability or related conditions.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A PUBLIC HEALTH EMERGENCY OR DISASTER
SUBCHAPTER G. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
26 TAC §570.611, §570.613

OVERVIEW

BACKGROUND AND JUSTIFICATION

New 26 TAC §570.711, §570.713, describing long-term care provider standards during a public health emergency or disaster for home and community-based services.

CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A PUBLIC HEALTH EMERGENCY OR DISASTER
SUBCHAPTER H. HOME AND COMMUNITY-BASED SERVICES
26 TAC §570.711, §570.713

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopted Rule Reviews Re:

Reviewing Title 26, Part 1 Chapter 279, Contracting to Provide Emergency Response Services.

OVERVIEW

The Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 26, Part 1, of the Texas Administrative Code:

Chapter 279, Contracting to Provide Emergency Response Services

Subchapter A, Introduction

Subchapter B, Contracting Requirements

Subchapter C, Staff Requirements

Subchapter D, Service Delivery

Subchapter E, Claim Payments and Documentation

BACKGROUND AND JUSTIFICATION

Notice of the review of this chapter was published in the March 11, 2022, issue of the Texas Register (47 TexReg 1303). HHSC received no comments concerning this chapter.

HHSC has reviewed Chapter 279 in accordance with §2001.039 of the Government Code, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist. The agency determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 279. Any appropriate amendments to Chapter 279 identified by HHSC during the rule review will be proposed in a future issue of the Texas Register.

This concludes HHSC’s review of 26 TAC Chapter 279 as required by the Government Code, §2001.039.

In Addition Re:

Public Notice: Value-Based Agreements for Home Health Supplies, Equipment, and Appliances Through the Pharmacy Benefit

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit transmittal number 22-0007 to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act.

BACKGROUND AND JUSTIFICATION

The purpose of this amendment is to add a reimbursement methodology for home health supplies, equipment, and appliances covered under the pharmacy benefit that do not have a corresponding rate under the medical benefit, improving cost-effectiveness with the goal of improving health outcomes for Medicaid beneficiaries. The amendment also incorporates language authorizing the state to negotiate value-based purchasing arrangements with manufacturers of these home health supplies. The requested effective date for the proposed amendment is June 1, 2022.

To obtain copies of the proposed amendment, interested parties may contact Shae James, State Plan Coordinator, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; by telephone at (512) 438-2264; by facsimile at (512) 730-7472; or by email at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposal will also be made available for public review at the local offices of the Texas Health and Human Services Commission.

State Board of Dental Examiners

Adopted Rules Re:

Amending 22 TAC §108.7 to allow for the provision of teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care.

CHAPTER 108. PROFESSIONAL CONDUCT
SUBCHAPTER A. PROFESSIONAL RESPONSIBILITY
22 TAC §108.7

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §108.7(3) – (4), concerning the minimum standard of care. The rule is adopted in accordance with House Bill 2056 of the 87th Texas Legislature, Regular Session (2021), and Chapter 111, Texas Occupations Code. The bill amended Chapter 111, Texas Occupations Code, which allows dental health professionals to provide teledentistry dental services to patients. The bill’s intent is to eliminate barriers pertaining to access to care, and allow dental health professionals to treat patients without having an in-person visit if the standard of care is met. This adopted amendment changes §108.7(3) – (4) to allow for the provision of teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. A dentist must ask the patient to come into the office for a physical examination if the diagnosis or treatment utilizing teledentistry is not adequate or consistent with the standard of care.

Paragraph (3) is adopted without changes to the proposed text as published in the March 11, 2022, issue of the Texas Register (47 Tex Reg 1174). Paragraph (4) is adopted with non-substantive changes to the proposed text as published in the March 11, 2022, issue of the Texas Register (47 Tex Reg 1174). The text of the rule will be republished.

New 22 TAC §180.16, describing professional standards when providing teledentistry dental services.

CHAPTER 108. PROFESSIONAL CONDUCT
SUBCHAPTER A. PROFESSIONAL RESPONSIBILITY
22 TAC §180.16

OVERVIEW

The State Board of Dental Examiners (Board) adopts new rule 22 TAC §108.16, concerning teledentistry. The adopted rule pertains to standards for the provision of teledentistry dental services as set out in House Bill 2056 of the 87th Texas Legislature, Regular Session (2021), and Chapter 111, Texas Occupations Code. This new rule is adopted with no changes to the proposed text as published in the March 11, 2022 issue of the Texas Register (47 TexReg 1176), and will not be republished.

BACKGROUND AND JUSTIFICATION

This rule was initially published in the November 12, 2021 issue of the Texas Register. During the public comment period, the Board received several stakeholder comments pertaining to the reference of §108.7 in §108.16(e)(2)(A). As a result of stakeholder feedback, the Board voted to amend §108.7, and also voted to re-propose this rule with no changes. Both rules were published in the March 11, 2022 issue of the Texas Register.

Texas Board of Nursing

Adopted Rules Re:

Amending 22 TAC §217.6 to exempt certain military spouse applicants from paying late fees and fines associated with a reactivation application.

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE
22 TAC §217.6

OVERVIEW

The Texas Board of Nursing (Board) adopts amendments to §217.6(j), relating to Failure to Renew License, without changes to the proposed text published in the February 18, 2022, issue of the Texas Register (47 Tex Reg 727). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

On June 15, 2020, the Board launched the Texas Nurse Portal. The Texas Nurse Portal is a paperless, online system that allows individuals to apply for nurse licensure by examination, endorsement, or renewal. In an effort to continue moving the Board’s work flow to a paperless system, the adopted amendments require the reactivation application and supporting documentation for a military spouse applicant to be submitted online through the Texas Nurse Portal.

Adopted §217.6(j) provides that a military spouse applicant may be exempt from paying late fees and fines associated with a reactivation application if the applicant submits to the Board: a completed reactivation application submitted through the Texas Nurse Portal accessible through the Board’s website, and documentation, also submitted through the Texas Nurse Portal accessible through the Board’s website, showing that the applicant is the spouse of an individual serving on active duty as a member of the armed forces of the United States.

Texas Department of Insurance

Adopted Rules Re:

New 28 TAC §§21.5501 – 21.5503, describing requirements for machine-readable files with regard to rate information for covered health care services and supplies; unique billed charges and allowed amounts for covered services provided by out-of-network providers; and negotiated rates for prescription drugs.

CHAPTER 21. TRADE PRACTICES
SUBCHAPTER UU. MACHINE-READABLE FILES
28 TAC §§21.5501 – 21.5503

OVERVIEW

The Commissioner of Insurance adopts new 28 TAC §§21.5501 – 21.5503, concerning machine-readable files.

The Commissioner adopts §21.5501 without changes and §21.5502 and §21.5503 with changes to the proposed text as published in the March 4, 2022, issue of the Texas Register (47 Tex Reg 1059). The adoption implements House Bill 2090, 87th Legislature, 2021. Section 21.5501 will not be republished. Section 21.5502 and §21.5503 will be republished.

BACKGROUND AND JUSTIFICATION

The new sections are necessary to implement legislation. New Insurance Code Chapter 1662 requires health benefit plan issuers or administrators to publish to the internet certain information in three machine-readable files. Specifically, Insurance Code §1662.103 requires issuers or administrators to publish rate information for covered health care services and supplies; unique billed charges and allowed amounts for covered services provided by out-of-network providers; and negotiated rates for prescription drugs. Insurance Code §1662.107 requires the department to prescribe by rule the form and manner in which the machine-readable files must be made available.

SECTION-BY-SECTION SUMMARY

Section 21.5501. New §21.5501 identifies the types of health benefit plans that are, and are not, subject to the requirements to produce machine-readable files. The section also specifies when issuers must begin publishing machine-readable files, including providing additional time for smaller issuers. In addition, the new section provides that issuers are not required to publish machine-readable files under this proposal’s requirements until the federal Departments of Labor, Health and Human Services, and Treasury begin enforcing the corresponding federal Transparency in Coverage rules (26 C.F.R. §§54.9815-2715A1 – .9815-2715A3; 29 C.F.R. §§2590.715-2715A1 – .715-2715A3; and 45 C.F.R. §§147.210 – .212), or January 1, 2024, whichever is earlier. As of the date of this publication, federal guidance states that the federal departments will defer enforcement of the requirement that plans and issuers publish machine-readable files related to prescription drug pricing pending further federal rulemaking, while enforcement of the requirements related to in-network rates and out-of-network allowed amounts and billed charges will be deferred until July 1, 2022. See FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021, Implementation Part 49 (available at dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-49.pdf).
Section 21.5502. New §21.5502 addresses various details concerning the form and manner in which machine-readable files are to be published, including transport mechanisms, nonproprietary data, and file-naming conventions. The new section also provides a safe harbor for issuers that are compliant with federal machine-readable file requirements.
In response to comments, the department makes changes to the proposed text in subsections (a) and (g) to track statutory language. The department also adds a new subsection (h) to the proposed text to allow an issuer that has multiple plans with the same negotiated rates with the same group of providers for the covered health care services and supplies to group multiple plans together within a single file. This provides flexibility for issuers and will reduce the total number of files that issuers will be required to publish. As adopted, proposed subsections (h) and (i) are redesignated as subsections (i) and (j), respectively. The department also adds new subsection (i)(2) to address the file-naming convention for the Table of Contents File that applies if an issuer chooses to include multiple plans per file. Paragraphs (2) and (3) in subsection (i), originally proposed as subsection (h)(2) and (3), are redesignated as paragraphs (3) and (4). The department also makes changes to Figure: 28 TAC §21.5502(i)(4) to add an example of the Table of Contents File naming convention, update the dates provided in the examples, clearly state the naming conventions for single-plan files and multiple plans per file, and delete two instances of an extraneous “and,” four extraneous semicolons, two extraneous periods, and one extraneous comma. Finally, the department adds a reference to Insurance Code §1662.107 and changes “re-use” to “reuse” in subsection (d), and the department adds an “and” to §21.5502(i)(1)(C).

Section 21.5503. New §21.5503 describes the data schemas that specify the data fields that must be included in each machine-readable file and the technical parameters associated with each data field. The department has published the data schemas on its website.
The department changes the proposed text to adopt Machine-Readable Files: Data Schemas (version 1.1), rather than the proposed version 1.0. The department also makes grammatical changes in subsections (a) – (c) and adds new subsections (d) and (e) to address new schemas provided in the federal machine-readable file requirements.
New subsection (d) addresses the Table of Contents File Schema, which an issuer must use if the issuer chooses to include multiple plans per file, as permitted by §21.5502(h). New subsection (e) addresses the Provider Reference File Schema, which an issuer may use to map the provider network to the item or service that is being documented within the In-Network File.

The following changes have been made to version 1.0 of the data schemas to produce version 1.1:

A Table of Contents File Schema has been added and corresponding changes are made to existing objects within the In-Network File and Out-Of-Network Allowed Amount File Schemas. The Reporting Plans Object previously contained within the In-Network File and Out-Of-Network Allowed Amount File Schemas has been moved into the Table of Contents Schema. For single-plan files, new fields for “plan_name,” “plan_id_type,” “plan_id,” and “plan_market_type” are added in the In-Network File and Out-Of-Network Allowed Amount File Schemas. These changes support new subsection (h) added to §21.5502, which allows an issuer to include data for multiple plans in a single file.
Within the In-Network File Schema, a Provider Reference Object has been added. Within the Negotiated Price Object, new “billing_code_modifier” and “additional_information” fields are added. Additional notes are added concerning “billing_code_type.”
Within the Out-of-Network Allowed Amount File Schema, in the Out-of-Network Payment Object, a new “billing_code_modifier” field has been added.
A Provider Reference File Schema has been added. With respect to the Negotiated Rate Details Object, a note has been added clarifying that issuers must include either a “provider_groups” or “provider_references” attribute to map the provider network to the item or service that is being documented.
Nonsubstantive updates are also made to the formatting and hyperlinks contained in the schema document.

Department of State Health Services

In Addition Re:

Licensing Actions for Radioactive Materials

OVERVIEW

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

BACKGROUND AND JUSTIFICATION

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

A person affected by the actions published in this notice may request a hearing within 30 days of the publication date. A “person affected” is defined as a person who demonstrates that the person has suffered or will suffer actual injury or economic damage and, if the person is not a local government, is (a) a resident of a county, or a county adjacent to the county, in which radioactive material is or will be located, or (b) doing business or has a legal interest in land in the county or adjacent county. 25 TAC §289.205(b)(15); Health and Safety Code §401.003(15). Requests must be made in writing and should contain the words “hearing request,” the name and address of the person affected by the agency action, the name and license number of the entity that is the subject of the hearing request, a brief statement of how the person is affected by the action what the requestor seeks as the outcome of the hearing, and the name and address of the attorney if the requestor is represented by an attorney. Send hearing requests by mail to: Hearing Request, Radioactive Material Licensing, MC 2835, PO Box 149347, Austin, Texas 78714-9347, or by fax to: (512) 206-3760, or by e-mail to: RAMlicensing@dshs.texas.gov.

Licensing Actions for Radioactive Materials

OVERVIEW

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

BACKGROUND AND JUSTIFICATION