Texas Register – November 5, 2021 Volume: 46 Number: 45

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §551.47, describing requirements for limited indoor and outdoor visitation in an intermediate care facility.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER C. STANDARDS FOR LICENSURE
26 TAC §551.47

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Part 1, Texas Administrative Code, Chapter 551, Intermediate Care Facilities for Individuals with an Intellectual Disability (ICF/IID) or Related Conditions, new §551.47, concerning an emergency rule in response to COVID-19 describing requirements for limited indoor and outdoor visitation in ICF/IID.

HHSC is adopting a new emergency rule to require limited indoor and outdoor visitation in an intermediate care facility. The purpose of the new rule is to describe the requirements related to such visits.

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. This emergency rulemaking reflects the continued reopening of the State of Texas. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Intermediate Care Facility COVID-19 Response–Expansion of Reopening Visitation.

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New 26 TAC §558.950, requiring limited indoor and outdoor visitation in a hospice inpatient unit.

CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
SUBCHAPTER I. RESPONSE TO COVID-19 AND PANDEMIC-LEVEL COMMUNICABLE DISEASE
26 TAC §558.950

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Texas Administrative Code, Chapter 558, Licensing Standards for Home and Community Support Services Agencies, Subchapter I, Response to COVID-19 and Pandemic-Level Communicable Disease, new §558.950, an emergency rule in response to COVID-19 describing requirements for indoor and outdoor visitation in a hospice inpatient unit.

HHSC is adopting an emergency rule to require limited indoor and outdoor visitation in a hospice inpatient unit. The purpose of the new rule is to describe the requirements related to such visits.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing if it finds 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 this emergency rule for Home and Community Support Services Agencies.

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New 1 TAC §355.7201, outlining requirements for reporting receipt of COVID-19 funds.

Adopted Rules Re:

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER I. REPORTING
1 TAC §355.7201

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts §355.7201, concerning Novel Coronavirus (COVID-19) Fund Reporting. Section 355.7201 is adopted with changes to the proposed text as published in the August 13, 2021, issue of the Texas Register (46 Tex Reg 4928). This rule will be republished.

BACKGROUND AND JUSTIFICATION

This rule is necessary to comply with the 2022-23 General Appropriations Act, Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, HHSC, Rider 143), and S.B. 809, 87th Legislature, Regular Session, 2021.

The rule outlines definitions, reporting requirements, guidelines, and procedures for health care institutions, as defined by Civil Practice and Remedies Code §74.001, including certain hospitals and nursing facilities, to report received federal COVID-19 funding. The COVID funding includes federal money received under the Coronavirus Aid, Relief, and Economic Security Act (15 U.S.C. §9001 et seq.), the Consolidated Appropriations Act, 2021 (Pub. L. No. 116-260), and the American Rescue Plan Act of 2021 (Pub. L. No. 117-2).

The rule outlines penalties for providers who fail to submit the required reports, in alignment with the provisions of S.B. 809 and Rider 143.

HHSC will compile and analyze the data and submit required legislative reports. S.B. 809 requires quarterly reports, and Rider 143 requires HHSC to submit reports on December 1st and June 1st of each fiscal year. Appropriations in Strategy A.2.4, Nursing Facility Payments, for fiscal year 2023 are contingent on the submission of the reports due December 1, 2021, and June 1, 2022.

The required reporting for both the providers and HHSC is anticipated to terminate by September 1, 2023.

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New 26 TAC §261.220, formalizing the current process for Medicaid bed reallocation authorized by the Long-Term Care Plan for Individuals with Intellectual Disabilities and Related Conditions.

CHAPTER 261. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS (ICF/IID) PROGRAM–CONTRACTING
SUBCHAPTER C. PROVIDER ADMINISTRATIVE REQUIREMENTS
26 TAC §261.220

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §261.220, concerning Medicaid Bed Reallocation, in Title 26, Texas Administrative Code (TAC), Chapter 261, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICF/IID) Program Contracting.

Section 261.220 is adopted with changes to the proposed text as published in the July 23, 2021, issue of the Texas Register (46 Tex Reg 4436). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The new section is necessary to implement House Bill (H.B.) 3117, 86th Legislature, Regular Session, 2019, which amended Texas Health and Safety Code §533A.062(b-1) and requires HHSC to develop a process to reallocate community ICF/IID beds.

The new section explains how a person applies for and HHSC reallocates beds that revert to the control of HHSC due to facility closure, with or without a period of suspension under 26 TAC §261.218. The adopted rule allows a person to request up to six beds per facility.

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New 26 TAC §306.1251, establishing disaster rule flexibilities for behavioral health providers.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER X. DISASTER RULE FLEXIBILITIES FOR BEHAVIORAL HEALTH PROVIDERS
26 TAC §306.1251

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §306.1251, concerning Disaster Flexibilities. Section 306.1251 is adopted with changes to the proposed text as published in the July 30, 2021, issue of the Texas Register (46 Tex Reg 4542). This rule will be republished.

BACKGROUND AND JUSTIFICATION

HHSC adopts rules to establish requirements and flexibilities to protect public health and safety during a disaster declared by the Governor. The requirements established in these rules are effective in all Texas counties or in a particular Texas county or counties during an active state of disaster as declared pursuant to Texas Government Code §418.014. The new section allows HHSC the flexibility to waive certain requirements for the delivery of services in response to a declared disaster. The new section is based on the existing emergency rule adopted in Texas Administrative Code Title 26, Part 1, Chapter 306, Subchapter Z, §306.1351, relating to COVID-19 Flexibilities. Adoption of new §306.1251 is necessary to allow providers subject to the rule to operate with the same flexibilities afforded by the emergency rule, and it ensures continuity of services for individuals receiving community-based behavioral health services.

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Transferred Rules Re:

Transferring the DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 61, Chronic Diseases, Subchapter C, Breast and Cervical Cancer Services to HHSC.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, certain functions previously performed by the Department of State Health Services (DSHS), including client services, certain regulatory functions, and the operation of state hospitals, transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. The DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 61, Chronic Diseases, Subchapter C, Breast and Cervical Cancer Services, that are related to these transferred functions, are being transferred to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 371, Breast and Cervical Cancer Services.

The rules will be transferred in the Texas Administrative Code effective December 1, 2021.

For more information, visit this week’s edition of the Texas Register at 46 Tex Reg 7643.

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In Addition Re:

Correcting an error in 26 TAC §500.21 regarding the rule’s expiration date.

The Texas Health and Human Services Commission published new emergency rule 26 TAC §500.21 in the October 22, 2021, issue of the Texas Register (46 Tex Reg 7109). Due to an error by the Texas Register, the expiration date of the emergency rule was published incorrectly. The correct expiration date for the emergency rule is February 4, 2022.

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Notice of Public Hearing on Proposed Medicaid Payment Rates for the Collaborative Care Management Services
Hearing.

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on November 19, 2021, at 1:00 p.m., to receive public comments on proposed Medicaid payment rates for the Collaborative Care Management Services.

Due to the declared state of disaster stemming from COVID-19, this hearing will be conducted both in-person and as an online event. 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/8422603633781796878 Webinar ID: 519-279-099

BACKGROUND AND JUSTIFICATION

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.

Members of the public may attend the rate hearing in person, which will be held in the Public Hearing Room 125 in the John H Winters Building located at 701 W 51st Street, Austin, Texas or may access a live stream of the meeting by following the link above. For the live stream, select the “Winters Live” tab.

PROPOSAL DETAILS

The payment rates for the Medicaid Legislative Policy Review of Collaborative Care Services are proposed to be effective June 1, 2022.

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Public Notice – Texas Healthcare Transformation Quality Improvement Program (THTQIP) Waiver Amendment

OVERVIEW

The Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the Texas Healthcare Transformation Quality Improvement Program (THTQIP) waiver under section 1115 of the Social Security Act. The current waiver is approved through September 2030. The proposed effective date for this amendment is March 5, 2022.

Senate Bill 1096, 86th Legislature, Regular Session, 2019 directs HHSC to seek a waiver of comparability to exempt STAR Kids members from all preferred drug list (PDL) prior authorizations (PA) to meet the requirements of Section 533.005, Government Code (a)(23)(L), as added by SB 1096, 86th Texas Legislature.

PROPOSED CHANGES

Specifically, SB 1096 removes all the Preferred Drug List (PDL) prior authorizations (PAs) for all members of the STAR Kids program except those PAs based on evidence-based clinical criteria and nationally recognized peer-reviewed information, and those PAs designed to minimize waste, fraud, or abuse. This amendment will not result in any changes to the formulary. This amendment will give a member the opportunity to be prescribed any drug whether there is preferred or non-preferred status although a member will not have access to drugs not covered by Medicaid.

HHSC is proposing to waive requirements in 42 CFR §440.240, related to comparability of services for groups, because only members of the STAR Kids program will be allowed this option. 42 CFR §440.240 requires the services available to any categorically needy beneficiary under the plan are not less in amount, duration, and scope than those services available to a medically needy beneficiary; and the services must be available to any individual in the following groups are equal in amount, duration, and scope for all beneficiaries within the group: (1) The categorically needy and (2) A covered medically needy group.

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Texas Department of Licensing and Regulation

Proposed Rules Re:

Amending 16 TAC §§114.20 – 114.22, 114.27, 114.29, 114.40, 114.50, 114.75, 114.80, to update rules relating to Orthotists and Prosthetists.

CHAPTER 114. ORTHOTISTS AND PROSTHETISTS
16 TAC §§114.20 – 114.22, 114.27, 114.29, 114.40, 114.50, 114.75, 114.80

OVERVIEW

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 114, §§114.20 – 114.22, 114.27, 114.29, 114.40, 114.50, 114.75, and 114.80, regarding the Orthotists and Prosthetists Program. These proposed changes are referred to as “proposed rules.”

BACKGROUND AND JUSTIFICATION

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

The proposed rules implement changes identified by the Department as a result of the four-year rule review process conducted under Texas Government Code §2001.39. The proposed rules are necessary to update rule provisions to reflect current Department procedures, amend outdated rule language, and eliminate unnecessary fees.

The proposed rules were presented to and discussed by the Orthotists and Prosthetists Advisory Board at its meeting on October 21, 2021. The Advisory Board made the following changes to the proposed rules: (1) inserting clarifying language into §114.27(c)(4) regarding the ability of orthotists and prosthetists to supervise a licensed prosthetist/orthotist assistant when performing orthotic or prosthetic care, respectively; (2) clarifying in §114.50(f) that pre-recorded, instructor-directed activities may be offered in-person or using telecommunications or information technology that permits two-way interaction between the instructor and the attendee; and (3) adding additional language in §114.75(f)(3) specifying that the permitted offsite or telehealth practice must be within the licensees’ scope of practice and removing a reference to “registrants.” The Advisory Board voted to recommend that the proposed rules with changes be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

• The proposed rules amend §114.20, Applications, by permitting submission of official transcripts and references in a manner prescribed by the Department, eliminating the requirement to submit proof of completion of the jurisprudence examination at every other renewal application, and removing outdated language regarding the disapproval of applications.
• The proposed rules amend §114.21, Licenses and Licensing Procedures, by eliminating a reference to the jurisprudence examination and clarifying the language requiring display of a license at the primary location of practice or place of employment.
• The proposed rules amend §114.22, Examination for Licensure as a Prosthetist, Orthotist, or Prosthetist/Orthotist, by inserting a reference to initial applicants completing the jurisprudence examination, removing outdated language related to the administration of the examination by the Department, and making clarifying changes to the section to reflect the current practices of the Department and its designee regarding the examination.
• The proposed rules amend §114.27, Assistant License, to revert language to the previous requirements of the section before erroneous language was inserted due to a clerical error. The language in the proposed rules is modeled on the text of the section as it existed in the version of the rule adopted to be effective October 1, 2016 (41 TexReg 4467), with minor changes to clarify the scope of supervision for assistants. The current rule text contains errors in subsection (c) due to a mistaken submission by Department staff in the version of the rule effective September 1, 2018 (43 TexReg 5362).
• The proposed rules amend §114.29, Accreditation of Facilities, to simplify submission requirements for changing a practitioner-in-charge or safety manager, and to eliminate the reference to submitting a fee for changing either of those positions.
• The proposed rules amend §114.40, Renewal, by removing the requirement to submit proof of completing the jurisprudence examination and changing the process for voluntary charity care license holders by eliminating the delay until the next renewal period if they wish to reinstate their license type to active status.
• The proposed rules amend §114.50, Continuing Education, by clarifying that live or pre-recorded instructor-directed activities may be offered in-person or using telecommunications or information technology that permits two-way interaction between the instructor and the attendee, classifying interactive computer-generated learning activities as a self-study activity, and making clarifying edits to the section based on these changes.
• The proposed rules amend §114.75, Scope and Conditions of Practice, by adding telehealth to the scope of practice in a facility, in addition to the existing offsite practice authorized under the section, limiting the offsite or telehealth practice to the licensees’ scope of practice, and removing a reference to “registrants.”
• The proposed rules amend §114.80, Fees, to eliminate the fee for changing a practitioner-in-charge or safety manager, and to eliminate the fees for renewal of a voluntary charity care license type.

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Department of State Health Services

Proposed Rules Re:

Amending 25 TAC §97.7 to add COVID-19 to the list of diseases requiring exclusion from school and provides readmission criteria.

CHAPTER 97. COMMUNICABLE DISEASES
SUBCHAPTER A. CONTROL OF COMMUNICABLE DISEASES
25 TAC §97.7

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes an amendment to §97.7, concerning COVID-19 school exclusion criteria.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal describes the criteria for COVID-19 that require exclusion from schools and provides guidance on readmission criteria. To protect children returning to school and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC, on behalf of DSHS, adopted an emergency rule amendment to §97.7 published in the August 13, 2021, issue of the Texas Register (46 TexReg 4922). To make this change permanent, DSHS and HHSC propose an amendment to §97.7.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §97.7 adds COVID-19 to the list of diseases requiring exclusion from school and provides readmission criteria. This change is consistent with the emergency rulemaking amendment to §97.7 that has been adopted.

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Transferred Rules Re:

Transferring the DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 61, Chronic Diseases, Subchapter C, Breast and Cervical Cancer Services to HHSC.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, certain functions previously performed by the Department of State Health Services (DSHS), including client services, certain regulatory functions, and the operation of state hospitals, transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. The DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 61, Chronic Diseases, Subchapter C, Breast and Cervical Cancer Services, that are related to these transferred functions, are being transferred to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 371, Breast and Cervical Cancer Services.

The rules will be transferred in the Texas Administrative Code effective December 1, 2021.

For more information, visit this week’s edition of the Texas Register at 46 Tex Reg 7643.

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In Addition Re:

Licensing Actions for Radioactive Materials

During the second half of September 2021, 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.

In 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.

For more information, visit this week’s edition of the Texas Register at 46 Tex Reg 7664.

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Licensing Actions for Radioactive Materials

During the second half of September 2021, 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.

In 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.

For more information, visit this week’s edition of the Texas Register at 46 Tex Reg 7668.

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Texas Medical Disclosure Panel

Adopted Rules Re:

Amending 25 TAC §601.2, §601.3 to address procedures requiring full disclosure of specific risks and hazards in relation to the requirements for informed consent.

CHAPTER 601. INFORMED CONSENT
25 TAC §601.2, §601.3

OVERVIEW

The Texas Medical Disclosure Panel (Panel) adopts amendments to §601.2, concerning Procedures Requiring Full Disclosure of Specific Risks and Hazards–List A and to §601.3, concerning Procedures Requiring No Disclosure of Specific Risks and Hazards–List B. Section 601.2 is adopted with changes to the proposed text as published in the April 23, 2021, issue of the Texas Register (46 Tex Reg 2683) and will be republished. Section 601.3 is adopted without changes and will not be republished.

BACKGROUND AND JUSTIFICATION

These amendments are adopted in accordance with Texas Civil Practice and Remedies Code §74.102, which created the Panel to determine which risks and hazards related to medical care and surgical procedures must be disclosed by health care providers or physicians to their patients or persons authorized to consent for their patients and to establish the general form and substance of such disclosure. Section 601.2 contains the List A procedures requiring disclosure of specific risks and hazards to patients before being undertaken; §601.3 contains the List B procedures for which no disclosure of specific risks and hazards is required.

SECTION-BY-SECTION SUMMARY

• Amendments to §601.2 modify the list of procedures and risks and hazards in subsection (b) regarding the cardiovascular system and subsection (o) regarding respiratory system treatments and procedures.
• An amendment to §601.3 removes one procedure in subsection (o) regarding respiratory system from the list of procedures requiring no disclosure of specific risks and hazards because that procedure has been moved from List B to List A.