Texas Register October 27, 2023 Volume: 48 Number: 43

Governor

Appointments Re:

The Governor appointed two individuals to the Chronic Kidney Disease Task Force.

Appointed to the Chronic Kidney Disease Task Force for a term to expire at the pleasure of the Governor:

• John R. Guerra, D.O. of Mission, Texas; and
• Shweta S. Shah, M.D. of Sugar Land, Texas.

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Texas Health and Human Services Commission

Proposed Rules Re:

Amending 26 TAC §§556.2, 556.3, 556.5, 556.8, to update references and definitions and to revise Nurse Aide Competency Evaluation Program (NATCEP) requirements.

CHAPTER 556. NURSE AIDES
26 TAC §§556.2, 556.3, 556.5, 556.8

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Title 26, Part 1, Chapter 556, Nurse Aides, amendments to §556.2, concerning Definitions; §556.3 concerning Nurse Aide Competency Evaluation Program (NATCEP) Requirements; §556.5, concerning Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements; and §556.8, concerning Withdrawal of Approval of a Nurse Aide Training and Competency Evaluation Program (NATCEP). These rules contain references to §556.4, concerning Filing and Processing an Application for a NATCEP, and §556.7, concerning Review and Reapproval of a NATCEP, which are not being changed.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to amend the rules to stipulate that NATCEPs must accept 60 hours of classroom training through HHSC’s computer-based training (CBT) for nurse aide candidates seeking to qualify for the Certified Nurse Aide (CNA) exam. The proposal updates definitions and references associated with the nurse aide CBT training and clarifies related requirements. Also, the proposal revises rule language regarding required credentials for NATCEP directors and instructors to align the rules more closely with federal requirements. More specifically, the Code of Federal Regulations (CFR) does not differentiate between the credentials required by the NATCEP program director versus the program instructor but states that the program must train nurse aides under the general supervision of a registered nurse with at least two years of nursing experience, at least one of which must be in providing long term care services. This proposal removes specific credentialing requirements in rule for NATCEP directors and instructors and replaces them with language allowing either or both to meet the federal requirements outlined in the CFR.

SECTION-BY-SECTION SUMMARY

• The proposed amendment to §556.2 revises definitions for nurse aide rules and updates references. Paragraph (6) updates the definition of “classroom training” to include HHSC’s CBT. Paragraph (10) removes the definition of “curriculum” and renumbers the rule accordingly. Paragraph (12) updates the definition of facility to include a hospice inpatient unit licensed under Texas Health and Safety Code, Chapter 142. New paragraph (25) defines the acronym “NATCEP.” New paragraph (29) adds a definition for “nurse aide curriculum.” Paragraph (34) amends the definition of “performance record” to require documentation of the nurse aide’s performance on HHSC Form 5497-NATCEP. Paragraph (37) updates a rule reference. Paragraph (38) updates the rule references for required program instructor credentials. Paragraph (41) updates the rule reference for required skills examiner credentials.
• The proposed amendment to §556.3 changes the title to use the acronym “NATCEP” and revises NATCEP requirements. New subsection (j) provides that a NATCEP using a hospice inpatient unit as a clinical site may provide clinical training only in those services authorized to be provided to clients under Texas Health and Safety Code, Chapter 142. The addition of subsection (j) renumbers the subsequent subsections in the section. Subsection (n) states that the NATCEP must ensure the trainee has completed 100 hours of training, provides that the 60 hours of classroom training may be taught by the NATCEP or obtained by a trainee through HHSC’s CBT, and clarifies that the 40 hours of clinical training is provided by the NATCEP. Subsection (o) updates the rule reference for requirements regarding the maintenance of NATCEP records. Subsection (p) clarifies that NATCEPs must include 16 hours of classroom training except as provided in subsection (q). Subsection (q) includes the new requirement that a NATCEP must accept proof of completion of HHSC’s CBT in lieu of the 16 hours of introductory classroom training in subsection (p) and eight hours of infection control training in subsection (t); it also specifies that the trainee only performs services for which the trainee has been trained and found by a program instructor to be proficient and that such trainee may only do so under appropriate supervision and as clearly identified as a trainee during the clinical training portion of the NATCEP. Subsection (r) stipulates that a NATCEP that fails to accept proof of completion of HHSC’s CBT for classroom training may be subject to withdrawal of program approval.
• Additionally, subsection (s) within §556.3 provides updated references related to program instructor requirements. Subsection (t) clarifies that a NATCEP must teach eight hours of infection control to trainees except as provided in subsection (q), which allows trainees to complete HHSC’s CBT. Subsection (w) makes a non-substantive editorial revision for clarity. Subsection (x) clarifies that a NATCEP must use HHSC Form 5497-NATCEP to document a trainee’s performance of duties or skills taught and maintain a copy of it. New subsection (y) includes a provision stipulating that if a trainee successfully completes HHSC’s CBT, the NATCEP must retain a copy of the HHSC-issued certificate of completion. The proposed amendment also includes non-substantive editorial and renumbering changes. Subsection (z) makes non-substantive editorial changes for clarity. Subsections (aa) and (dd) clarify rule language to differentiate between a “facility” and a “nursing facility” within the rule.
• The proposed amendment to §556.5 makes the rule consistent with 42 CFR §483.152 and affords NATCEP staff more flexibility to meet the requirements. Subsection (a) stipulates that a NATCEP must have an approved program director and instructor to provide training, that the training must be performed by or under the general supervision of a registered nurse (RN) who has a minimum of two years of nursing experience, one of which must be in a nursing facility, and that the NATCEP application must certify that the program meets this requirement. Subsection (b) reiterates the requirement that a program director must be an RN in the state of Texas, have a minimum of two years of nursing experience, and have completed a course with a focus on teaching adult students or have experience in teaching adult students or supervising nurse aides. Subsection (c) allows an instructor to be a licensed vocational nurse (LVN) or RN in the state of Texas who has a minimum of two years of nursing experience and has completed a course with a focus on teaching adult students or has experience in teaching adult students or supervising nurse aides. Subsection (d) stipulates that either the program director or instructor must have at least one year of experience providing long term care services in a nursing facility. It also provides that if a NATCEP instructor is an LVN, the NATCEP must have a director with at least one year of experience providing long term care services in a nursing facility or an instructor who is an RN with at least one year of providing long term care services in a nursing facility. Subsection (e) moves the credentialing requirements for program director to subsection (d). It also clarifies that the NATCEP director must determine if trainees pass both the classroom and clinical training portions of the program and sign a competency evaluation application and the certificate of completion or a letter on letterhead stationary of the NATCEP or nursing facility stating that the training passed both the classroom and clinical portions of the competency portions of the NATCEP. Finally, it adds that completion of the classroom training for trainees who complete the HHSC CBT is determined by the certificate of completion, which includes the date the trainee completed it. Subsection (f) moves the credentialing requirements for program instructor to subsection (d). Non-substantive edits update references and renumber and improve clarity and readability.
• The proposed amendment to §556.8 changes the title to use the acronym “NATCEP” and revises procedures relating to withdrawal of approval of a NATCEP. Subsection (a) clarifies that HHSC immediately withdraws approval of a facility-based NATCEP assessed a civil money penalty of $5,000 or more, which is adjusted annually under 45 CFR §102. Subsection (b) provides that HHSC will review allegations of noncompliance with this chapter by a NATCEP, notifying the program in writing and giving the program an opportunity to correct the noncompliance or providing documentation showing compliance, in writing, to HHSC within 10 days of receipt of notice of noncompliance. It further stipulates that if the NATCEP fails to correct the noncompliance, provide documentation showing compliance, or respond to HHSC’s first notification, HHSC sends a second notice, which the NATCEP has 20 days to comply with or have its approval withdrawn. Subsection (d) replaces HHSC’s means of notification of noncompliance via certified mail with email. Non-substantive edits improve clarity and readability.

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Adopted Rules Re:

New 26 TAC §§284.101, 284.103, 284.105, 284.107, 284.109, 284.111, to implement the Competitive and Integrated Employment Initiative for certain Medicaid recipients.

CHAPTER 284. COMPETITIVE AND INTEGRATED EMPLOYMENT INITIATIVE FOR CERTAIN MEDICAID RECIPIENTS
26 TAC §§284.101, 284.103, 284.105, 284.107, 284.109, 284.111

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts new §284.101, concerning Purpose; §284.103, concerning Applicability; §284.105, concerning Uniform Process; §284.107, concerning Strategies to Increase Number of Individuals Receiving Employment Services; §284.109, concerning Referrals to the Texas Workforce Commission; and §284.111, concerning Increasing the Number of Individuals Receiving Employment Services.

Sections 284.105, 284.107, 284.109, and 284.111 are adopted with changes to the proposed text as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2659). These rules will be republished. Sections 284.101 and 284.103 are adopted without changes to the proposed text as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2659). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The new sections are necessary to comply with Texas Government Code §531.02448, regarding Competitive and Integrated Employment Initiative for Certain Medicaid Recipients, added by Senate Bill (S.B.) 50, 87th Legislature, Regular Session, 2021.

The Community Living Assistance and Support Services (CLASS), Deaf Blind with Multiple Disabilities (DBMD), Home and Community-based Services (HCS), Texas Home Living (TxHmL), and STAR+PLUS Home and Community-based Services (STAR+PLUS HCBS) programs each provide employment services. Employment assistance services assist an individual in locating competitive employment in the community. Supported employment assists an individual in sustaining competitive employment.

To implement S.B. 50, HHSC developed a form to use in the CLASS, DBMD, HCS, TxHmL, and STAR+PLUS HCBS programs to determine an individual’s employment goals and the employment opportunities and employment services available to the individual in the individual’s program. The adopted rules require the entity responsible for developing an individual’s person-centered service plan to determine an individual’s desire to work. The adopted rules require an individual’s response to be documented in the individual’s person-centered service plan. When the individual indicates a desire to work, the responsible entity is required to complete the HHSC Employment First Discovery Tool at the time the plan is developed during initial enrollment, and annual renewals, and revisions if the individual’s person-centered service plan does not include an employment service.

After completing the HHSC Employment First Discovery Tool, if an individual’s person-centered service plan does not include employment services through the waiver program in which the individual is enrolled, the adopted rules require an individual’s case manager or service coordinator to refer the individual for employment services available through the Texas Workforce Commission (TWC). The adopted rules specify HHSC’s determination that the number of individuals receiving employment services on December 31, 2023, from the TWC or through the waiver programs in which the individuals are enrolled, will be at least five percent greater than the number of individuals receiving employment services on December 31, 2022.

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Proposed Rule Reviews Re:

Title 26, Part 1, to review and consider for readoption, revision, or repeal the chapter concerning Ombudsman Services.

The Texas Health and Human Services Commission (HHSC) proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 26, Part 1, of the Texas Administrative Code:

Chapter 87, Ombudsman Services

Subchapter A Office of The Ombudsman

Subchapter B Ombudsman Managed Care Assistance

Subchapter C Ombudsman for Children and Youth in Foster Care

Subchapter D Ombudsman for Behavioral Health

Subchapter E Intellectual or Developmental Disability Ombudsman

This review is conducted in accordance with the requirements of Texas Government Code §2001.039, which requires state agencies, every four years, to assess whether the initial reasons for adopting a rule continue to exist. After reviewing its rules, the agency will readopt, readopt with amendments, or repeal its rules.

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In Addition Re:

Notice of Public Hearing on Proposed Payment Rates for Medicaid Community Hospice and Physician Services, specifically ERS rates under STAR+PLUS non-Home and Community-Based Services (HCBS), STAR+PLUS HCBS, Community First Choice (CFC), and Title XX programs, and STAR Kids/STAR Health Medically Dependent Children Program (MDCP) Out-of-Home Respite rates.

OVERVIEW

Notice of Public Hearing on Proposed Payment Rates for Medicaid Community Hospice and Physician Services, Effective Retroactive to October 1, 2023; and Rate Actions for Emergency Response Services (ERS) rates under STAR+PLUS non-Home and Community-Based Services (HCBS), STAR+PLUS HCBS, Community First Choice (CFC), and Title XX programs, and STAR Kids/STAR Health Medically Dependent Children Program (MDCP) Out-of-Home Respite rates, effective January 1, 2024.

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Texas Board of Physical Therapy Examiners

Adopted Rules Re:

Amending 22 TAC §329.1, to clarify changes in contact information that need to be reported to the Board.

CHAPTER 329. LICENSING PROCEDURE
22 TAC §329.1

OVERVIEW

The Texas Board of Physical Therapy Examiners adopts amending 22 TAC §329.1. General Licensure Requirements and Procedures to clarify changes in contact information that need to be reported to the board and requests for name changes. The amendment is adopted without changes to the proposed text as published in the September 08, 2023, issue of the Texas Register (48 TexReg 4980). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment eliminates reference to an address of record, changes the wording from residential to home address, and adds phone numbers and email addresses to the change of information that a licensee is required to report to the board. Additionally, the amendment clarifies that name changes must be submitted on a form prescribed by the board with the appropriate fee and a copy of legal documentation enacting the name change, and eliminates the requirement of making a name change with the renewal application.

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Amending 22 TAC §329.6, §329.7, to allow military service members licensed and in good standing in another jurisdiction to engage in the practice of physical therapy without obtaining a license as a physical therapist or physical therapist assistant.

CHAPTER 329. LICENSING PROCEDURE
22 TAC §329.6, §329.7

OVERVIEW

The Texas Board of Physical Therapy Examiners adopts amendments to 22 TAC §329.6. Licensure by Endorsement and §329.7. Exemptions from Licensure pertaining to military service member exemption pursuant to SB 422 amendment of Sec. 55.0041. RECOGNITION OF OUT-OF-STATE LICENSE OF MILITARY SERVICE MEMBERS AND MILITARY SPOUSES, of Chapter 55, Occupations Code during the 88th Legislative Session.

BACKGROUND AND JUSTIFICATION

The amendments are adopted in order to authorize a military service member to engage in the practice of physical therapy without obtaining a license as a physical therapist or physical therapist assistant if the military service member is currently licensed in good standing by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the licensure in this state and the military service member is stationed at a military installation in this state.

The amendments to §329.6 are adopted without changes to the proposed text as published in the September 08, 2023 issue of the Texas Register (48 TexReg 4981) and will not be republished. The amendments to §329.7 are adopted with changes to the proposed text as published in the September 08, 2023 issue of the Texas Register (48 TexReg 4981) by adding (C) to §329.7. Exemptions from Licensure. (5) in order to clarify that the adopted amendments do not modify or alter rights that might be provided under federal law. The rule will be republished.

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