Texas Register October 1, 2021 Volume: 46 Number: 40

Health and Human Services Commission

Emergency Rules Re:

Renewing 26 TAC §558.961 to allow HCSSAs to purchase, store, and transport COVID-19 vaccines.

CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
SUBCHAPTER I. RESPONSE TO COVID-19 AND PANDEMIC-LEVEL COMMUNICABLE DISEASE
26 TAC §558.961

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency new §558.961 for a 60-day period. The text of the emergency rule was originally published in the June 11, 2021, issue of the Texas Register (46 Tex Reg 3599).

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) renews on an emergency basis in Title 26 Texas Administrative Code, Chapter 558, Licensing Standards for Home and Community Support Services Agencies, new §558.961, concerning an emergency rule in response to COVID-19 to implement provisions in House Bill 797, passed by the 87th Legislature, Regular Session, 2021, relating to possession and administration of certain vaccines by a home and community support services agency (HCSSA) or its employees.

HHSC is renewing this emergency rule to allow HCSSAs to purchase, store, and transport COVID-19 vaccine for the purposes of vaccinating clients and staff.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code §2001.034, HHSC may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for HCSSAs in response to COVID-19.

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Adopted Rules Re:

Amending 1 TAC §351.823 to change the e-Health Advisory Committee (eHAC) reporting requirement from annually to biennially.

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICES
SUBCHAPTER B. ADVISORY COMMITTEES
DIVISION 1. COMMITTEES
1 TAC §351.823

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §351.823, concerning e-Health Advisory Committee. The amendment to §351.823 is adopted without changes to the proposed text as published in the July 16, 2021, issue of the Texas Register (46 Tex Reg 4243), and therefore will not be republished.

BACKGROUND AND JUSTIFICATION

Texas Administrative Code Title 1, Part 15, §351.823(d), currently requires the e-Health Advisory Committee (eHAC) to prepare and submit an annual written report to the executive commissioner and Texas Legislature. eHAC reports are produced by members who are non-Health and Human Services employees.

In a July 2020 eHAC meeting, members voted to amend the rule to change the reporting requirement from annually to biennially. This amendment would afford members more time between reports, thus enabling members to more thoroughly research and address any recommendations made by the committee to HHSC.

Under Texas Government Code §2110.006, state agencies must annually evaluate the work of advisory committees as well as their usefulness and associated costs. To ensure HHSC continues to meet this obligation related to the eHAC, HHSC staff proposed eHAC members prepare an informational briefing memorandum in non-report years to report costs, accomplishments, and areas of focus for the eHAC. Such documentation would permit the agency to comply with its obligations under Texas Government Code §2110.006.

Additional amendments to §351.823 reorganize and format the rule so that the eHAC rule is consistent with other HHSC advisory committee rules established under Texas Government Code §531.012.

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In Addition Re:

Public Notice – Renewal of the Texas Home Living (TxHmL) Waiver Application Effective March 1, 2022

The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to renew the Texas Home Living (TxHmL) waiver program authorized under §1915(c) of the Social Security Act. CMS has approved the TxHmL waiver application through February 28, 2022. The proposed effective date for the renewal is March 1, 2022.

This renewal request proposes to make the following changes:

• Appendix B: Participant Access and Eligibility
• Appendix C: Participant Services
• Appendix D: Service Delivery
• Appendix E: Participant Direction of Services
• Appendix F: Participant Rights
• Appendix G: Health and Welfare
• Appendix H: Quality Improvement Strategy
• Appendix I: Financial Accountability
• Performance Measures

Complete details of the changes can be found in this week’s Texas Register at 46 Tex Reg 6580.

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Texas State Board of Examiners of Psychologists

Proposed Rules Re:

Amending 22 TAC §463.11 to allow psychologist licensure applicants to petition the Board regarding a deficiency in the applicant’s required supervised experience.

CHAPTER 463. APPLICATIONS AND EXAMINATIONS
SUBCHAPTER B. LICENSING REQUIREMENTS
22 TAC §463.11

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §463.11, relating to Supervised Experience Required for Licensure as a Psychologist.

The proposed amendment is intended to allow applicants for licensure as a psychologist to petition the Texas State Board of Examiners of Psychologists regarding a deficiency in the applicant’s required supervised experience for licensure. The Board can then examine the applicant and either approve, deny, or condition the approval on reasonable terms and conditions designed to ensure the applicant’s education, training, and experience provide reasonable assurance that the applicant has the knowledge and skills necessary for entry-level practice as a licensed psychologist. Prior to submitting such a petition, an applicant must have completed at least 1,500 hours of supervised experience in a formal internship, obtained a doctoral degree in psychology, completed at least 1,500 hours of supervised experience following conferral of a doctoral degree, and obtained a passing score on all requisite examinations, the jurisprudence examination and the EPPP. If an applicant has not met these minimum requirements then an applicant is not eligible to submit the petition described in the proposed amendment. The proposed rule does not allow the Board to waive or modify any requirements that are required by federal law, state constitution or statute, or Council rule found in 22 TAC Part 41.

BACKGROUND AND JUSTIFICATION

If a rule will pertain to the qualifications necessary to obtain a license; the scope of practice, standards of care, or ethical practice for a profession; continuing education requirements; or a schedule of sanctions then the rule must first be proposed to the Executive Council by the applicable board for the profession before the Executive Council may propose or adopt such a rule, see §507.153 of the Tex. Occ. Code. The proposed rule pertains to the qualifications necessary to obtain a license to practice psychology. Therefore, this rule is covered by §507.153 of the Tex. Occ. Code.

The Texas State Board of Examiners of Psychologists, in accordance with §501.1515 of the Tex. Occ. Code, previously voted and, by a majority, approved to propose this rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 501 and 507 of the Tex. Occ. Code and may propose this rule.

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Amending 22 TAC §465.13 to clarify requirements relating to Personal Problems, Conflicts, and Dual Relationship.

CHAPTER 465. RULES OF PRACTICE
22 TAC §465.13

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §465.13, relating to Personal Problems, Conflicts, and Dual Relationship.

Currently the rule requires licensees to refrain from entering into a professional relationship where another relationship is likely to cause harm or impair the licensee’s objectivity. Additionally, licensees must withdraw from a professional relationship if another relationship exists that is likely to cause harm or impair the licensee’s objectivity. The proposed amendment is intended to clarify these requirements in the rule, that when a licensee conducts the practice of psychology the licensee must do so with the best interest of the recipient of those services in mind.

BACKGROUND AND JUSTIFICATION

If a rule will pertain to the qualifications necessary to obtain a license; the scope of practice, standards of care, or ethical practice for a profession; continuing education requirements; or a schedule of sanctions then the rule must first be proposed to the Executive Council by the applicable board for the profession before the Executive Council may propose or adopt such a rule, see §507.153 of the Tex. Occ. Code. The proposed rule pertains to the scope of practice, standards of care, or ethical practice for the practice of psychology. Therefore, this rule is covered by §507.153 of the Tex. Occ.Code.

The Texas State Board of Examiners of Psychologists, in accordance with §501.1515 of the Tex. Occ. Code, previously voted and, by a majority, approved to propose this rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 501 and 507 of the Tex. Occ. Code and may propose this rule.

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Texas State Board of Examiners of Professional Counselors

Proposed Rules Re:

Amending 22 TAC §681.2 to clarify the definition of art therapy and correct a typographical error.

CHAPTER 681. PROFESSIONAL COUNSELORS
SUBCHAPTER A. GENERAL PROVISIONS
22 TAC §681.2

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to 22 TAC §681.2, relating to Definitions.

The proposed amendment to §681.2 is intended to provide clarity to the definition of art therapy and correct a typographical error. The proposed amendment also provides a definition for the term independent practice, which is proposed to be defined as the practice of providing professional counseling services to a client without the supervision of an LPC-S.

BACKGROUND AND JUSTIFICATION

If a rule will pertain to the qualifications necessary to obtain a license; the scope of practice, standards of care, or ethical practice for a profession; continuing education requirements; or a schedule of sanctions then the rule must first be proposed to the Executive Council by the applicable board for the profession before the Executive Council may propose or adopt such a rule, see §507.153 of the Tex. Occ. Code. The proposed rule provides definitions for the rules in Chapter 681, which pertain to the qualifications necessary to obtain a license as well as the scope of practice, standards of care, or ethical practice for the practice of professional counseling. Therefore, this rule is covered by §507.153 of the Tex. Occ. Code.

The Texas State Board of Examiners of Professional Counselors, in accordance with § 503.2015 of the Tex. Occ. Code, previously voted and, by a majority, approved to propose this rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Tex. Occ. Code and may propose this rule.

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Amending 22 TAC §681.91 to update rules relating to the supervision of an LPC-Associate and allow LPC-Associates to own their own business and accept direct payment.

CHAPTER 681. PROFESSIONAL COUNSELORS
SUBCHAPTER C. APPLICATION AND LICENSING
22 TAC §681.91

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §681.91, relating to LPC Associate License.

The proposed amendment still requires an LPC-Associate to only practice professional counseling under the supervision of an LPC-S, but the proposed amendment no longer prohibits LPC-Associates from owning their own business or accepting direct payment. The proposed amendment will allow for the supervision arrangements between an LPC-Associate and LPC-S to be one of a direct employee, independent contractor, or any other legal arrangement the parties agree to. The proposed amendment also clarifies how LPC-Associates must represent themselves, and which licensee is responsible for the retention and maintenance of client records.

BACKGROUND AND JUSTIFICATION

If a rule will pertain to the qualifications necessary to obtain a license; the scope of practice, standards of care, or ethical practice for a profession; continuing education requirements; or a schedule of sanctions then the rule must first be proposed to the Executive Council by the applicable board for the profession before the Executive Council may propose or adopt such a rule, see §507.153 of the Tex. Occ. Code. The proposed rule pertains to the qualifications necessary to obtain a license, as well as the scope of practice, standards of care, or ethical practice for a profession. Therefore, this rule is covered by §507.153 of the Tex. Occ. Code.

The Texas State Board of Examiners of Professional Counselors, in accordance with § 503.2015 of the Tex. Occ. Code, previously voted and, by a majority, approved to propose this rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Tex. Occ. Code and may propose this rule.

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Amending 22 TAC §681.93 to update supervisor requirements.

CHAPTER 681. PROFESSIONAL COUNSELORS
SUBCHAPTER C. APPLICATION AND LICENSING
22 TAC §681.93

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §681.93, relating to Supervisor Requirements.

The Council is no longer mailing renewal permits; verification of licensure status is done online. The proposed amendment will reduce regulatory burden by allowing the supervisor to print and keep a copy of the online license verification in lieu of a wall certificate. Additionally, the proposed amendment requires a supervisor to keep a written record acknowledging the supervisee is self-employed, if applicable. And the proposed amendment clarifies the liability assumed for a supervisee by a supervisor; both are responsible for the professional counseling activities of an LPC-Associate but an LPC-S may be subject to disciplinary action for violations that relate only to the professional practice of counseling committed by the LPC-Associate which the LPC-S knew about or due to the oversight nature of the supervisory relationship should have known about.

BACKGROUND AND JUSTIFICATION

If a rule will pertain to the qualifications necessary to obtain a license; the scope of practice, standards of care, or ethical practice for a profession; continuing education requirements; or a schedule of sanctions then the rule must first be proposed to the Executive Council by the applicable board for the profession before the Executive Council may propose or adopt such a rule, see §507.153 of the Tex. Occ. Code. The proposed rule pertains to the qualifications necessary to obtain a license, as well as the scope of practice, standards of care, or ethical practice for a profession. Therefore, this rule is covered by §507.153 of the Tex. Occ. Code.

The Texas State Board of Examiners of Professional Counselors, in accordance with §503.2015 of the Tex. Occ. Code, previously voted and, by a majority, approved to propose this rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Tex. Occ. Code and may propose this rule.

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Texas Behavioral Health Executive Council

Proposed Rules Re:

New 22 TAC §882.37, prohibiting licensees from requiring an individual to provide documentation certifying the individual’s COVID-19 vaccination or post-transmission recovery.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER C. DUTIES AND RESPONSIBILITIES
22 TAC §882.37

The Texas Behavioral Health Executive Council proposes new 22 TAC §882.37, relating to COVID-19 Vaccine Passports Prohibited.

The proposed new rule is needed to implement S.B. 968, 87th Leg., R.S. (2021), which codifies new Section 161.0085 of the Health and Safety Code. This new statute requires state agencies to ensure compliance with this statute and may require compliance as a condition for licensure.

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Amending 22 TAC §882.70 to eliminate the thirty-day renewal requirement for individuals that hold an emergency temporary license.

CHAPTER 882. APPLICATIONS AND LICENSING
SUBCHAPTER G. EMERGENCY TEMPORARY LICENSE
22 TAC §882.70

The Texas Behavioral Health Executive Council proposes amendments to §882.70, relating to Emergency Temporary License.

The proposed amendment removes the requirement that individuals that hold an emergency temporary license issued by this agency must renew such a license within 30 days or it will expire. Under the proposed amendment, once an emergency temporary license has been issued it remains active until the disaster declaration has been terminated or the suspension of statutes or rules that allowed for the issuance of the emergency temporary license have been lifted.

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New 22 TAC §884.4, addressing the procedural requirements for the filing and adjudication of complaints relating to court-ordered therapy or parenting facilitator services.

CHAPTER 884. COMPLAINTS AND ENFORCEMENT
SUBCHAPTER A. FILING A COMPLAINT
22 TAC §884.4

The Texas Behavioral Health Executive Council proposes new §884.4, relating to Special Requirements for Complaints Alleging Violations Related to Court Ordered Therapy or Parenting Facilitator Services.

The proposed new rule is intended to address the procedural requirements for the filing and adjudication of complaints relating to court-ordered therapy or parenting facilitator services. Under this rule, a complainant must wait to bring a complaint to the agency until the licensee’s appointment has expired or been terminated. This ensures that complaints are not used as a litigation tactic and that the agency does not interfere or conflict with a court’s inherent power to regulate its own proceedings. Additionally, the proposed new rule expressly preserves a complainant’s right to file a complaint once a licensee is no longer under appointment even if the general limitations period has expired.

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Amending 22 TAC §885.1 to clarify and correct the Texas.gov fee required for some of the license applications and criminal history evaluations.

CHAPTER 885. FEES
22 TAC §885.1

The Texas Behavioral Health Executive Council proposes amendments to 22 TAC §885.1, relating to Fees.

The proposed amendment is intended to clarify and correct the Texas.gov fee required for some of the license applications, and criminal history evaluations. This fee is required by law, is paid to a different state agency, and is only expected to increase by about $3.00 to $10.00 per application. The fee is necessary because these applications are transitioning from traditional paper applications to an online process which is expected to increase agency efficiencies and make the application process easier for applicants. Additionally, this proposed amendment combines the fees for an initial LMFT Associate application with the fee for the initial licensure, but the result is the same fee.

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Texas Medical Board

Withdrawn Rules Re:

Withdrawing 22 TAC §187.2 and §187.6, which related to the usage of the terms “appear” and “appearance.”

CHAPTER 187. PROCEDURAL RULES
SUBCHAPTER A. GENERAL PROVISIONS AND DEFINITIONS
22 TAC §187.2, §187.6

The Texas Medical Board withdraws the proposed emergency amended §187.2 and §187.6 which appeared in the July 23, 2021, issue of the Texas Register (46 Tex Reg 4413).

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Withdrawing 22 TAC §187.16, which sought to ensure consistent usage of the term “appear” and “appearance” with regard to informal board proceedings.

CHAPTER 187. PROCEDURAL RULES
SUBCHAPTER B. INFORMAL BOARD PROCEEDINGS
22 TAC §187.16

The Texas Medical Board withdraws the proposed emergency amended §187.16 which appeared in the July 23, 2021, issue of the Texas Register (46 Tex Reg 4415).

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Adopted Rules Re:

Amending 22 TAC §174.5 to allow physicians to utilize telemedicine when renewing prescription(s) for scheduled medications to certain established chronic pain patients.

CHAPTER 174. TELEMEDICINE
SUBCHAPTER A. TELEMEDICINE
22 TAC §174.5

OVERVIEW

The Texas Medical Board (Board) adopts amendments to Subchapter A: Telemedicine, §174.5, concerning Issuance of Prescriptions. The amendments to §174.5 are being adopted with non-substantive changes to the proposed text as published in the August 13, 2021, issue of the Texas Register (46 TexReg 4970). The adopted amendments to §174.5 will be republished.

Amendments to §174.5, Issuance of Prescriptions are adopted as follows:

§174.5 relating to Issuance of Prescriptions, the amendments to §174.5(e) allow physicians to utilize telemedicine to continue issuing previous prescription(s) for scheduled medications to established chronic pain patients, if the physician has, within the past 90 days, seen a patient in-person or via a telemedicine visit using two-way audio and video communication. The amendments will consistently and conveniently provide patients access to schedule drugs needed to ensure on-going treatment of chronic pain and avoid potential adverse consequences associated with the abrupt cessation of pain medication.