Texas Register September 13, 2024 Volume: 49 Number: 37

Texas Register Table of Contents

1 Texas Health and Human Services Commission
2 Texas Department of State Health Services
3 Texas Optometry Board
- - 3.0.1 Adopted Rules Re:

Texas Health and Human Services Commission

Proposed Rule Re:

Amending 1 TAC §353.1306, to increase the maximum ACR UPL percentage.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES
1 TAC §353.1306

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §353.1306, concerning Comprehensive Hospital Increase Reimbursement Program for Program Periods on or after September 1, 2021.

BACKGROUND AND PURPOSE

The Texas Health and Human Services Commission has been working since September 2022 to evaluate the future of the Medicaid hospital financing system in a post-public health emergency environment. With the combination of new Medicaid fee-for-service and managed care rules at the federal level, the unwinding of the Medicaid caseload coverage from the public health emergency, and the interplay between directed payment programs and new supplemental payment programs (e.g. the private graduate medical education (GME) and Hospital Augmented Reimbursement program (HARP)), hospital financing in Medicaid and for the uninsured has been challenging to forecast. With the support of hospitals and their representatives, Medicaid managed care organizations and their representatives, and industry subject matter experts, HHSC has come to final decisions regarding the program design of Comprehensive Hospital Increase Reimbursement Program (CHIRP) that will be implemented, beginning in state fiscal year (SFY) 2026.

Beginning in SFY 2025, CHIRP is composed of three components: Uniform Hospital Rate Increase Payment (UHRIP), Average Commercial Incentive Award (ACIA), and Alternate Participating Hospital Reimbursement for Improving Quality Award (APHRIQA). The proposed rule amendment to §353.1306 updates the ACIA component calculation beginning in SFY 2026, to calculate the Average Commercial Reimbursement (ACR) gap on an aggregated, per class basis. The proposed rule amendment to §353.1306 also allocates available ACIA funds across hospital classes based on the proportion of the combined ACR gap of each hospital class within an Service Delivery Area (SDA) to the total ACR gap of all hospitals within the SDA. Lastly, the proposed rule amendment to §353.1306 updates the maximum ACR Upper Payment Limit (UPL) percentage to 95 percent beginning in SFY 2027 and to 100 percent beginning in SFY 2028.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §353.1306(g)(3)(A) clarifies that for program periods SFY 2025 and prior, the ACR gap used is the individual ACR gap. The proposed amendment to §353.1306(g)(3)(A) further adds that, beginning in SFY 2026, the ACR gap will be the aggregated ACR gap within a class and SDA.

The proposed amendment to §353.1306(g)(3)(B) updates the maximum ACR UPL percentage. The proposed amendment to §353.1306(g)(3)(B) provides that the maximum ACIA payments beginning in SFY 2027 will not exceed 95 percent of the total estimated ACR UPL; and, beginning in SFY 2028, the maximum ACIA payments will not exceed 100 percent of the total estimated ACR UPL.

The proposed amendment to §353.1306(g)(4)(A) revises clause (ii) so that the APHRIQA payment will use the same maximum ACR UPL amounts specified for ACIA in subsection (g)(3)(B).

Amending 1 TAC §354.1832, to create a new process through which the Vendor Drug Program (VDP) will add drugs to the formulary on a provisional basis and elaborate on an existing process concerning Preferred Drug List (PDL) exceptions.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER F. PHARMACY SERVICES
DIVISION 2. ADMINISTRATION
1 TAC §354.1832

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1832, concerning Prior Authorization Procedures; and §354.1921, concerning Addition of Drugs to the Texas Drug Code Index.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement House Bill (H.B.) 3286 and Senate Bill (S.B.) 241, 88th Legislature, Regular Session, 2023.

H.B. 3286 amended the Texas Government Code to add §531.0691, creating a new process for the Medicaid pharmacy benefit in which the Vendor Drug Program (VDP) will add drugs to the formulary on a provisional basis. H.B. 3286 also amended Texas Government Code Chapter 533 to add §533.071 which elaborates on an existing process in the Medicaid managed care program regarding Preferred Drug List (PDL) exceptions and when a non-preferred drug can be used by listing these exceptions. Section 533.071 also added new PDL exceptions.

S.B. 241 amended Texas Health and Safety Code Chapter 439 to add new Subchapter D, §439.102. Texas Health and Safety Code §439.102(a) requires a manufacturer of a brand name insulin prescription drug for which a generic or biosimilar prescription drug is not available and is included in the Medicaid VDP formulary, to submit to HHSC a written verification stating whether or not the unavailability of the generic or biosimilar prescription drug is the result, wholly or partly, (1) of a scheme by the manufacturer to pay a generic or biosimilar prescription drug manufacturer to delay manufacturing or marketing the generic or biosimilar drug; (2) a legal or business strategy to extend the life of a patent on the brand name prescription drug; (3) the manufacturer directly manipulating a patent on the brand name prescription drug; or (4) the manufacturer directly manipulating an action described in reasons (1) – (3) of this sentence on behalf of another entity.

Texas Health and Safety Code §439.102(b) requires HHSC to adopt rules that prescribe the form and manner for submission of the written verification required by §439.102(a).

SECTION-BY-SECTION SUMMARY

The proposed amendment to §354.1832 adds new subsections (f) – (h) to set forth the PDL prior authorization exception criteria. Subsection (f) adds the current PDL prior authorization exception criteria. Subsection (g) adds a reference to Texas Insurance Code §1369.213, which refers to prior authorization exceptions for coverage of stage-four advanced, metastatic cancer. Proposed new subsection (h) lists the PDL prior authorization exception criteria that are added by Texas Government Code §533.071. In proposed subsection (h)(1), the exception criteria is that the drug required under the preferred drug list is contraindicated, will likely cause an adverse reaction in or physical or mental harm to the recipient, or the drug is expected to be ineffective based on the known clinical characteristics of the recipient and the known characteristics of the prescription drug regimen. In proposed subsection (h)(2), the exception criteria is that the recipient previously discontinued taking the preferred drug at any point in the recipient’s clinical history and for any length of time because the drug was not effective, had a diminished effect, or resulted in an adverse event. In proposed subsection (h)(3), the exception criteria is that the recipient was prescribed and is taking a nonpreferred drug in the antidepressant or antipsychotic drug class and the recipient was prescribed the nonpreferred drug before being discharged from an inpatient facility, is stable on the nonpreferred drug, and is at risk of experiencing complications from switching from the nonpreferred drug to another drug. In proposed subsection (h)(4), the exception criteria is that the preferred drug is not available for reasons outside of the Medicaid managed care organization’s control, including because the drug is in short supply according to the Food and Drug Administration Drug Shortages Database, or the drug manufacturer has placed the drug on backorder or allocation.

The proposed amendment replaces “the Health and Human Services Commission (HHSC) or its designee” with “HHSC” in subsection (a) because “HHSC” is defined in §354.1121 as “The Texas Health and Human Services Commission or its designee.” The proposed amendment also replaces “The” with “the” in subsection (e)(1).

Amending 1 TAC §354.1921, to require brand-name insulin prescription drug manufacturers to submit notification of unavailability of generic or biosimilar insulin drugs to HHSC and set forth the reporting requirements.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER F. PHARMACY SERVICES
DIVISION 7. TEXAS DRUG CODE INDEX–ADDITIONS, RETENTIONS, AND DELETIONS
1 TAC §354.1921

OVERVIEW

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement House Bill (H.B.) 3286 and Senate Bill (S.B.) 241, 88th Legislature, Regular Session, 2023.

Texas Health and Safety Code §439.102(b) requires HHSC to adopt rules that prescribe the form and manner for submission of the written verification required by §439.102(a).

SECTION-BY-SECTION SUMMARY

The proposed amendment to §354.1921 adds new subsection (d) to require manufacturers of brand-name insulin prescription drugs to submit notification of unavailability of generic or biosimilar insulin drugs to HHSC, stating whether or not the unavailability of the generic or biosimilar prescription drug is the result, wholly or partly of, a scheme by the manufacturer to pay a generic or biosimilar prescription drug manufacturer to delay manufacturing or marketing the generic or biosimilar drug; a legal or business strategy to extend the life of a patent on the brand name prescription drug; the manufacturer directly manipulating a patent on the brand name prescription drug; or the manufacturer facilitating an action described by the previous three bullet points on behalf of another entity.

Proposed subsection (e) includes the method insulin manufacturers must use to submit written verification to HHSC, which is through the submission of a Certificate of Information (COI), and on a yearly basis thereafter through the supplemental rebate solicitation process. The proposed amendment adds a new proposed subsection (g) to set forth that HHSC adds drugs to the Texas Drug Code Index on a provisional basis after HHSC receives a COI that is then approved by HHSC, or is pending review by HHSC, for a determination by HHSC that the drug is appropriate for dispensing through an outpatient pharmacy and meets the additional requirements in Texas Government Code §531.0691.

The proposed amendment replaces “the commission” with “HHSC” in subsections (c)(1), (c)(2), (f), (h), (i), (j)(5), (j)(6), (j)(10), (j)(11), (j)(16), and (j)(18) to use consistent terminology when referring to “HHSC.” The proposed amendment replaces “Certification of Information” with “Certificate of Information” in subsections (b), (c)(2), (f), (h), and (j)(11) to be consistent with the terminology used in Texas Government Code §531.0691 for this form. The proposed amendment renumbers certain subsections in the rule. And in renumbered subsection (i) paragraph (18), replaces “Average Wholesale Price” with “AWP” and “Average Manufacturer Price” with “AMP” because these acronyms are in the definitions of these terms in renumbered subsection (j) paragraphs (2) and (3). The term “pricing information” is also added to subsection (j) paragraph (18).

Amending 1 TAC §355.8065, §355.8070, to standardize and clarify current calculation methodologies, allow some rural hospitals to receive advance FFY 2025 Disproportionate Share Hospital payments (DSH); and include Medicare definitions used by CMS, and update existing practices to increase transparency.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
DIVISION 4. MEDICAID HOSPITAL SERVICES
1 TAC §355.8065, §355.8070

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §355.8065, concerning Disproportionate Share Hospital Reimbursement Methodology, §355.8070, concerning Hospital Augmented Reimbursement Program, and §355.8212, concerning Waiver Payments to Hospitals for Uncompensated Charity Care.

BACKGROUND AND PURPOSE

The Texas Health and Human Services Commission has been working since September 2022 to evaluate the future of the Medicaid hospital financing system in a post-public health emergency environment. With the combination of new Medicaid fee-for-service and managed care rules, the unwinding of the Medicaid caseload coverage from the public health emergency and the interplay of new supplemental payment programs (e.g. the private graduate medical education (GME) and Hospital Augmented Reimbursement program (HARP)), hospital financing in Medicaid and for the uninsured has been challenging to forecast. With the support of hospitals and their representatives, Medicaid managed care organizations and their representatives, industry subject matter experts, and the staff at the Centers for Medicare & Medicaid Services (CMS), HHSC has come to final decisions about strategies to ensure stability in the event that the Uncompensated Care (UC) pool is reduced in the future.

Disproportionate Share Hospital Program

The proposed rule amendment makes clarifying updates to §355.8065 to align the rule text with the current calculation methodology and adds rural hospitals to be deemed to qualify and exempt from the trauma system condition of participation beginning in Federal Fiscal Year (FFY) 2025. The proposed rule amendment may allow rural hospitals to receive advance FFY 2025 Disproportionate Share Hospitals (DSH) payments if they are eligible based on the new deeming and trauma criteria. The proposed rule updates the descriptions to accurately describe Pool Three Pass One secondary payment, the rural public and private pools, the advance payment for FFY 2025 and beyond, and adds certain clarifying amendments.

Uncompensated Care Program

The proposed rule amendment to §355.8212 increases the size of the High Impecunious Charge Hospital (HICH) pool to a level that does not exceed $1 billion in total and updates the order of the HICH pool allocation to become the second hospital payment allocation made in UC and will enable any HICH hospital to receive payments before any non-HICH hospital.

Hospital Augmented Reimbursement Program

The proposed rule amendment to §355.8070 adds the Medicare definition used by CMS of nominal charge provider and includes clarifications to the payment methodology that HARP payments will be limited such that inpatient Medicaid payments will not exceed inpatient Medicaid charges for all providers except those who meet the Medicare definition of a nominal charge provider. The proposed rule updates codify the existing practice to increase transparency.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.8065(b) adds a definition (for the term “Federal medical assistance percentage (FMAP)” and clause (i) is removed from paragraph (47)(B) to align with current practice in accordance with a change that allowed Managed Care Organizations (MCOS) to pay Institution for mental diseases (IMDs) for this age group under certain authorities.

The proposed amendment to §355.8065(d) adds paragraph (5) which includes rural hospitals to be deemed to qualify beginning in FFY 2025.

The proposed amendment to §355.8065(e)(3)(C) adds rural hospitals to hospital types exempt from the condition of participation described in paragraph (e)(3).

The proposed amendment to §355.8065(g)(3) clarifies that HHSC may set aside a portion of the remaining federal funds for rural private hospitals.

The proposed amendment to §355.8065(h)(2)(C)(iii)(II) adds the description of transferring public hospitals’ responsibility to fund a portion of the non-federal share of the rural private pool.

The proposed amendment to §355.8065(h)(4)(H)(ii) adds the clarifying description of rural private payments to be included in the recalculation of total pool two and rural private payments for transferring public hospitals and private hospitals based on the actual intergovernmental transfer provided by transferring public hospitals.

The proposed amendment to §355.8065 updates subsection (h)(5)(B) to accurately describe the calculation of the secondary payment from Pool Three Pass One.

The proposed amendment to §355.8065 updates subsection (h)(7) to accurately describe the rural public pool distribution and payment calculation.

The proposed amendment to §355.8065 updates subsection (h)(8) to accurately describe the rural private pool distribution and payment calculation.

The proposed amendment to §355.8065 updates subsection (k)(3) to include conditions of participation listed in subsection (e)(3)-(9).

The proposed amendment to §355.8065 updates subsections (q)(5)(C) and (q)(5)(D) to describe the advance payment calculation process to be used for 2025 and subsequent program years.

The proposed amendment to §355.8065 includes numbering updates as needed throughout.

The proposed amendment to §355.8070(b) adds a definition for the term “nominal charge provider.” The paragraphs are renumbered to account for the addition of a paragraph.

The proposed amendment to §355.8070 updates subsection (d)(3) to describe that total inpatient Medicaid payments will not exceed inpatient Medicaid charges for providers who do not meet the nominal charge provider definition in the non-state government-owned and operated hospitals class.

The proposed amendment to §355.8070 updates subsection (e)(3) to describe that total inpatient Medicaid payments will not exceed inpatient Medicaid charges for providers who do not meet the nominal charge provider definition in the private hospitals class.

The proposed amendment to §355.8070 updates subsection (f)(3) to describe that total inpatient Medicaid payments will not exceed inpatient Medicaid charges for providers who do not meet the nominal charge provider definition in the state government-owned hospitals class.

The proposed amendment to §355.8070 updates subsection (g)(3) to describe that total Medicaid payments will not exceed Medicaid charges for providers who do not meet the nominal charge provider definition in the state government-owned Institutions for Mental Diseases (IMDs) hospitals class.

The proposed amendment to §355.8070 updates subsection (h)(3) to describe that total Medicaid payments will not exceed Medicaid charges for providers who do not meet the nominal charge provider definition in the private IMDs hospitals class.

Amending 1 TAC §355.8212, to add clauses that clarify the occurrence, amount, and allocation of HICH pool payments.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
1 TAC §355.8212

OVERVIEW

BACKGROUND AND PURPOSE

The Texas Health and Human Services Commission has been working since September 2022 to evaluate the future of the Medicaid hospital financing system in a post-public health emergency environment. With the combination of new Medicaid fee-for-service and managed care rules, the unwinding of the Medicaid caseload coverage from the public health emergency and the interplay of new supplemental payment programs (e.g. the private graduate medical education (GME) and Hospital Augmented Reimbursement program (HARP)), hospital financing in Medicaid and for the uninsured has been challenging to forecast. With the support of hospitals and their representatives, Medicaid managed care organizations and their representatives, industry subject matter experts, and the staff at the Centers for Medicare & Medicaid Services (CMS), HHSC has come to final decisions about strategies to ensure stability in the event that the Uncompensated Care (UC) pool is reduced in the future.

Disproportionate Share Hospital Program

Uncompensated Care Program

Hospital Augmented Reimbursement Program

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.8212(f)(2)(D) adds new clause (ii) to describe that beginning in demonstration year seventeen, the HICH pool payments will occur before the non-state owned provider pool payments. The following clauses are renumbered.

The proposed amendment to §355.8212(f)(2)(D)(iv)-(v) adds the description that beginning in demonstration year seventeen, the HICH pool will be at an amount equal to or less than one billion.

The proposed amendment to §355.8212(g)(6)(B)(i) clarifies that beginning in demonstration year seventeen, the non-state owned hospital pool will consider UC payments allocated in both the state-owned and HICH pools.

Amending 26 TAC §§306.151 – 306.155, to update the description and formatting of the purpose of the subchapter; clarify the applicability of the rules to different hospitals; defines new terms as used specifically in Subchapter D; revises the definitions of certain terms to be consistent with other rules; deletes obsolete terms; clarifies which individuals are entitled to a hearing after the termination, suspension, or reduction of their services by HHSC; and establishes LMHA, LBHA, and CoC liaison responsibilities.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER D. MENTAL HEALTH SERVICES–ADMISSION, CONTINUITY, AND DISCHARGE
DIVISION 1. GENERAL PROVISIONS
26 TAC §§306.151 – 306.155

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §306.151, relating to Purpose; §306.152, relating to Application and Responsibility for Compliance; §306.153, relating to Definitions; §306.154, relating to Notification and Appeals Process for Local Mental Health Authority or Local Behavioral Health Authority Services; §306.161 relating to Screening and Assessment; §306.162, relating to Determining County of Residence; §306.163, relating to Most Appropriate and Available Treatment Options; §306.171, relating to General Admission Criteria for a State Mental Health Facility or Facility with a Contracted Psychiatric Bed; §306.172, relating to Admission Criteria for Maximum-Security Units; §306.173, relating to Admission Criteria for an Adolescent Forensic Unit; §306.174 relating to Admission Criteria for Waco Center for Youth; §306.175, relating to Voluntary Admission Criteria for a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility; §306.176, relating to Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility for Emergency Detention; §306.177, relating to Admission Criteria Under Order of Protective Custody or Court-ordered Inpatient Mental Health Services; §306.178, relating to Voluntary Treatment Following Involuntary Admission; §306.191, relating to Transfers Between State Mental Health Facilities; §306.192, relating to Transfers Between a State Mental Health Facility and a State Supported Living Center; §306.193, relating to Transfers Between a State Mental Health Facility and an Out-of-State Institution; §306.194, relating to Transfers Between a State Mental Health Facility and Another Facility in Texas; §306.195, relating to Changing Local Mental Health Authorities or Local Behavioral Health Authorities; §306.201, relating to Discharge Planning; §306.202, relating to Special Considerations for Discharge Planning; §306.203, relating to Discharge of an Individual Voluntarily Receiving Treatment; §306.204, relating to Discharge of an Individual Involuntarily Receiving Treatment; §306.205, relating to Pass or Furlough from a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed; §306.207, relating to Post Discharge or Absence for Trial Placement: Contact and Implementation of the Recovery or Treatment Plan; and §306.221, relating to Screening and Intake Assessment Training Requirements at a State Mental Health Facility and a Facility with a Contracted Psychiatric Bed.

HHSC proposes new §306.155, relating to Local Mental Health Authority, Local Behavioral Health Authority, and Continuity of Care Liaison Responsibilities; §306.361, relating to Purpose; §306.363, relating to Application; §306.365, relating to Definitions; §306.367, relating to General Provisions; and §306.369, relating to Documentation Requirements.

HHSC proposes the repeal of §306.206, relating to Absence for Trial Placement.

BACKGROUND AND PURPOSE

The Texas Health and Human Services Commission (HHSC) proposes amendments and the repeal of a rule in the Texas Administrative Code (TAC), Title 26 Chapter 306, Subchapter D relating to Mental Health Services–Admission, Continuity, and Discharge and proposes new rules in 26 TAC Chapter 306, Subchapter H relating to Behavioral Health Services–Telecommunications. The rule proposal is necessary to implement Senate Bill (S.B.) 26, 88th Legislature, Regular Session, 2023 and House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021.

S.B. 26 requires HHSC to adopt or amend existing rules to address a local mental health authority’s (LMHA’s) responsibility for ensuring the successful transition of patients determined ready for discharge from an HHSC mental health facility. To implement S.B. 26, the proposal amends the rules to do the following. Require state hospitals to participate in joint discharge planning with an LMHA. Require coordination between the LMHAs and the state hospital to determine appropriate community services for a patient. Require an LMHA to arrange for the provision of services upon discharge. Require the LMHA’s transition support services to complement joint discharge planning efforts. Require each state hospital to designate at least one employee to provide transition support services for patients determined medically appropriate for discharge. Require each state hospital to concentrate transition support services on patients admitted and discharged multiple times within 30 days, or patients who had a long-term stay (more than 365 consecutive days). And allow voluntary admission to an inpatient mental health facility, including a state hospital, only if space is available.

H.B. 4 directs HHSC to ensure that individuals receiving HHSC-funded behavioral health services have the option to receive services as telemedicine or telehealth services, including using an audio-only platform, to the extent it is clinically effective and cost-effective.

Additionally, HHSC proposes amendments to clarify statutory requirements; add, remove, and update definitions; delete references to managed care organizations (MCOs) and update Medicaid-related information; update and add cross-references; and make grammatical and editorial changes for understanding, accuracy, and uniformity.

SECTION-BY-SECTION SUMMARY

The proposed amendment to the title of 26 TAC Chapter 306, Subchapter D, Mental Health Services–Admission, Continuity, and Discharge, replaces “Admission, Continuity, and Discharge” with “Mental Health Services–Admission, Discharge, and Continuity of Care” to make the subchapter’s title more representative of the body text.

Division 1, General Provisions

The proposed amendment to §306.151 updates the description of the purpose of the subchapter by adding it provides requirements for admission, discharge, and continuity of care and specifies that state hospitals, facilities with contracted psychiatric beds (CPBs), and local intellectual and developmental disability authorities (LIDDAs) are included in the service array. The proposed amendment also includes in the purpose for the rules to establish criteria for the delivery of substance use disorder (SUD) services to individuals. The proposed amendment also updates the purpose section to include criteria and guidelines in the subchapter for individuals receiving both mental health and SUD disorder services. The proposed amendment also formats the rule as subsection (a) and subsection (b) to improve the readability of the rule.

The proposed amendment to §306.152 clarifies that the rules apply to a state hospital, a CPB, an LMHA, a local behavioral health authority (LBHA), and a LIDDA. The proposed amendment also clarifies that an LMHA or LBHA must require its subcontractors to comply with Subchapter D.

The proposed amendment to §306.153 adds new definitions to define what these terms mean when used in Subchapter D: “Audio-only technology,” “Audiovisual technology,” “CoC liaison–Continuity of care liaison,” “DFPS–Texas Department of Family and Protective Services or its designee,” “Discharge planning specialist,” “DSM –Diagnostic and Statistical Manual of Mental Disorders,” “Family partner,” “Furlough,” “In person,” “Involuntary admission,” “LPHA–Licensed practitioner of the healing arts,” “Outpatient management plan,” “Pass,” “PE–PASRR level II evaluation,” “PL1–PASRR level I screening,” “SED–Serious emotional disturbance,” “State hospital,” and “Voluntary admission.”

The proposed amendment to §306.153 revises the following definitions for clarification and to align with other rules: “Absence,” “Admission,” “Adolescent,” “Adult,” “Advance directive,” “Alternate provider,” “Assessment,” “Assessment professional,” “Child,” “Continuity of care,” “Continuity of care worker,” “COPSD,” “COPSD model,” “CPB–Contracted psychiatric bed,” “CRCG,” “Crisis,” “Crisis treatment alternatives,” “Day,” “DD–Developmental disability,” “Designated LMHA or LBHA,” “Discharge,” “Discharged unexpectedly,” “Emergency medical condition,” “ID–Intellectual disability,” “Inpatient services,” “Intake assessment,” “LAR–Legally authorized representative,” “LBHA–Local behavioral health authority,” “LIDDA–Local intellectual and developmental disability authority,” “LMHA or LBHA network provider,” “LMHA or LBHA services,” “Local service area,” “Mental illness,” “MH priority population–Mental health priority population,” “Minor,” “Nursing facility,” “Offender with special needs,” “Ombudsman,” “PASRR,” “Peer specialist,” “Permanent residence,” “QMHP-CS–Qualified mental health professional-community services,” “Recovery,” “Recovery or treatment plan,” “Screening,” “SSLC–State supported living center,” “SUD–Substance use disorder,” and “Treatment team.”

The proposed amendment to §306.153 deletes the following definitions because they no longer need to be defined or are no longer used in Subchapter D: “ATP–Absence for trial placement;” “Face to face;” “Facility;” “Individual involuntarily receiving treatment;” “Individual voluntarily receiving treatment;” “MCO–Managed care organization;” “PASRR Level I screening;” “PASRR Level II evaluation;” “SMHF–State mental health facility,” which is being replaced by “state hospital” throughout Subchapter D; and “Transfer.” The proposed amendment renumbers the definitions to account for new and deleted definitions.

The proposed amendment to §306.154 clarifies that any individual eligible for Medicaid and whose services have been terminated, suspended, or reduced by HHSC is entitled to a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearings Rules). The proposed amendment renumbers the remaining subsections, deletes repetitive language in §306.154(b), and clarifies information on how to contact the Office of the Ombudsman.

Proposed new §306.155 establishes LMHA, LBHA, and CoC liaison responsibilities and requires the LMHA or LBHA to develop policies and procedures for specific CoC liaison duties and responsibilities.

Amending 26 TAC §§306.161 – 306.163, to clarify an LMHA or LBHA’s required provision of community services, removes repetitive language, and adds SUD services to LMHA or LBHA services.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER D. MENTAL HEALTH SERVICES–ADMISSION, CONTINUITY, AND DISCHARGE
DIVISION 2. SCREENING AND ASSESSMENT FOR CRISIS SERVICES AND ADMISSION INTO LOCAL MENTAL HEALTH AUTHORITY OR LOCAL BEHAVIORAL HEALTH AUTHORITY SERVICES–LOCAL MENTAL HEALTH AUTHORITY OR LOCAL BEHAVIORAL HEALTH AUTHORITY RESPONSIBILITIES
26 TAC §§306.161 – 306.163

OVERVIEW

HHSC proposes the repeal of §306.206, relating to Absence for Trial Placement.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

Division 2, Screening and Assessment for Crisis Services and Admission into Local Mental Health Authority or Local Behavioral Health Authority Services–Local Mental Health Authority or Local Behavioral Health Authority Responsibilities retitled as “Screening and Assessment for Crisis Services and Admission into Local Mental Health Authority or Local Behavioral Health Authority Services”.

The proposed amendment to §306.161, in subsection (a), clarifies that an LMHA or LBHA must ensure an individual’s immediate screening, and if emergency care services are recommended based on the screening, that the staff member complies with access to community service requirements. The proposed amendment to subsection (c) clarifies screening and assessment requirements if an individual not in crisis presents for services. The proposed amendment to subsection (d) clarifies that an LMHA or LBHA must provide services immediately for eligible individuals in the MH priority population. The proposed amendment to subsection (d)(4) specifies that an LMHA or LBHA has three business days to provide an individual not in the mental health priority population with written notification regarding denial of services and updates that the information provided to include how to contact the Office of the Ombudsman.

The proposed amendment to §306.162, in subsection (a), clarifies county of residence requirements for adults and removes repetitive language. The proposed amendment adds a new paragraph (b)(3) to clarify LMHA and LBHA requirements for a minor in DFPS conservatorship. The proposed amendment in subsections (c) and (d) replaces “dispute” with “disagreement” and clarifies who initiates the disagreement related to an individual’s county of residence for LMHA or LBHA services. The proposed amendment in subsection (e) clarifies the role of the LMHA or LBHA when an individual changes county of residence status.

The proposed amendment to §306.163, in subsection (a), adds SUD services to LMHA or LBHA services. The proposed amendment in subsection (b)(2) clarifies that inpatient services need to be the least restrictive “and most appropriate setting” available. The proposed amendment in subsection (b)(3) adds “or a DD” for accuracy and uniformity regarding referrals to LIDDAs. The proposed amendment adds a new paragraph (9) in subsection (b) regarding the LMHA’s or LBHA’s responsibility for continuity of care and planning. The proposed amendment in subsection (d) replaces “most integrated setting” with “least restrictive and most appropriate setting” for clarity.

Amending 26 TAC §§306.171 – 306.178, to rename the section titles, update new terminology and remove overly-restrictive or repetitive terminology, clarify changes in various sections, and outlines admittance process in different circumstances.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER D. MENTAL HEALTH SERVICES–ADMISSION, CONTINUITY, AND DISCHARGE
DIVISION 3. ADMISSION TO A STATE MENTAL HEALTH FACILITY OR A FACILITY WITH A CONTRACTED PSYCHIATRIC BED–PROVIDER RESPONSIBILITIES
26 TAC §§306.171 – 306.178

OVERVIEW

HHSC proposes the repeal of §306.206, relating to Absence for Trial Placement.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §306.171 retitles the rule from “General Admission Criteria for a State Mental Health Facility or Facility with a Contracted Psychiatric Bed” to “General Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed” to update terminology. The proposed amendment in subsection (b)(1) clarifies that a state hospital or CPB may not admit an individual with a medical condition that requires medical care not available at the facility. The proposed amendment in subsection (c)(1) specifies a time frame of within three business days of the individual’s presentation for services that a state hospital or CPB has to notify the designated LMHA or LBHA that the individual has presented for services. The proposed amendment in subsection (c)(2)(A) clarifies a statutory reference for Emergency Medical Treatment and Active Labor Act (EMTALA), and in subsection (c)(2)(B) requires that hospital transfers must occur according to Medicare, Medicaid, and EMTALA regulations. The proposed amendment in subsection (d) clarifies a facility must contact the designated LMHA or LBHA to coordinate alternate outpatient community services at time of admission denial. The proposed amendment in renumbered subsection (e) requires the designated LMHA or LBHA to contact and notify the individual, or the individual’s LAR if applicable, that the LMHA or LBHA will provide referrals and referral follow-up.

The proposed amendment to §306.172, replaces “HHSC state hospital policies” with a reference to “25 TAC Chapter 415, Subchapter G,” relating to Determination of Manifest Dangerousness, and makes a minor editorial changes.

The proposed amendment to §306.173 (a)(1)(A) removes the term “specialized” that currently describes mental health treatment, and replaces “to address violent behavior” with “to address a risk of dangerousness.” These changes are made to offer greater flexibility for individual eligibility and to align rule language. The proposed amendment revises the admission criteria in subsection (a)(1)(C) to require a written letter of recommendation from the local Community Resource Coordination Group (CRCG) that confirms available community resources for an adolescent have been exhausted. The proposed amendment revises the admission criteria in subsection (a)(3) by replacing “in accordance with HHSC state hospital policies” with “in accordance with 25 TAC Chapter 415, Subchapter G (relating to Determination of Manifest Dangerousness).” The proposed amendment in subsection (b) removes the requirement for a physician to determine if the adolescent has an ID diagnosis.

The proposed amendment to §306.174 removes repetitive language in subsection (a)(1) and amends subsection (a)(2) to specify that an individual’s admission to Waco Center for Youth may occur if an individual has an SED based on the version of the DSM currently recognized by HHSC. The proposed amendment to subsection (a)(3) replaces “behavior adjustment problems” with “behavior adjustment concerns” to exercise person-first language. The proposed amendment to subsection (a)(5)(A) clarifies that a referral for Waco Center for Youth admission can be made by the LMHA, LBHA, or CRCG when all appropriate community-based resources have been exhausted and the Center is the least restrictive and most appropriate environment. The proposed amendment adds new subparagraph (C) to add DFPS as a referral source for Waco Center for Youth admission to align with statute. The proposed amendment to subsection (b)(1) updates the minimum age for admission to 13 and adds that admission may not occur if the adolescent’s age at admission does not allow adequate time for treatment programming before reaching 18 years of age. The proposed amendment to subsection (b)(4) removes the requirement for a physician determination for an ID diagnosis. The proposed amendment to subsection (c) specifies a time frame of within three business days for Waco Center for Youth to provide an adolescent’s LAR and LMHA or LBHA written notification that states the reason for a denial in services. The proposed amendment to subsection (d) requires written clinical appropriateness of readmission to Waco Center for Youth and formats the last sentence in subsection (d) as new subsection (e) to make it a separate requirement. The proposed amendment adds a new subsection (f) to require an LMHA or LBHA to assess an adolescent for eligible services and continuity of care if a denial occurs.

The proposed amendment to §306.175 retitles the rule from “Voluntary Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility” to “Voluntary Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed” to update terminology. The proposed amendment to subsection (a)(1)(B) adds a cross-reference regarding LAR criteria for voluntary admission. The proposed amendment adds a new subsection (a)(4) to clarify who qualifies to be an LAR. The proposed amendment to subsection (b) adds “LIDDA” throughout the subsection as an entity to notify if an individual does not meet admission criteria to a state hospital or CPB; removes repetitive language in paragraph (1); and proposes new subsection (b)(2) to require the LMHA or LBHA to provide referrals and referral follow-up for ongoing services. The proposed amendment to subsection (c)(2)(C) adds language that specifies an assessment for SUD to be included in the state hospital or CPB admission examination. The proposed amendment replaces the current subsection (e) with a new subsection (e) to require an LMHA or LBHA to provide, or refer the individual to, community mental health services and supportive services to meet the needs of the individual who does not meet admission criteria. The proposed amendment to subsection (h), adds a new paragraph (4) to implement Texas Health and Safety Code §572.0026, which requires a state hospital or CPB to voluntarily admit an individual only if there is available space at the state hospital or CPB.

The proposed amendment to §306.176 retitles the rule from “Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility for Emergency Detention” to “Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed for Emergency Detention” to update terminology.

The proposed amendment makes clarifying changes in subsections (a), (b), (c)(2), (d)(1) – (3), and (e) to use “must” where imposing a rule as a requirement is necessary and in subsection (e) to use “may” because the state hospital or CPB under certain conditions may or may not admit an individual for emergency detention. The proposed amendment to subsection (d)(2) clarifies that a facility is required to contact the designated LMHA or LBHA to provide referrals and referral follow-up for ongoing services for an individual who is not admitted on an emergency detention; and adds a reference to Texas Health and Safety Code Chapter 573. The proposed amendment, in subsection (d)(2), adds new subparagraphs (A) and (B) to require the LMHA or LBHA in the individual’s county of residence to contact the individual within 24 hours of being notified that the individual does not meet emergency detention criteria and to provide referrals and referral follow-up for ongoing services. The proposed amendment to subsection (e) adds new language to require that all intake assessment documents must be provided to the individual or the individual’s LAR. The proposed amendment in subsection (e)(1) – (5) makes minor editorial changes for clarity.

Proposed amendments to §306.177(a) clarifies a state hospital or CPB may admit an individual after receiving an order of protective custody; removes language in §306.177(b) that describes how an individual’s admission is not a medical act; and amends §306.177(c) to clarify that the intake assessment must be conducted with an individual, and their LAR if applicable.

Amending 26 TAC §§306.191 – 306.195, to retitle various rules, update rule reference and other minor editing changes, and includes a new paragraph providing that CoC liaisons must initiate transition planning with the receiving LMHA or LBHA.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER D. MENTAL HEALTH SERVICES–ADMISSION, CONTINUITY, AND DISCHARGE
DIVISION 4. TRANSFERS AND CHANGING LOCAL MENTAL HEALTH AUTHORITIES OR LOCAL BEHAVIORAL HEALTH AUTHORITIES
26 TAC §§306.191 – 306.195

OVERVIEW

HHSC proposes the repeal of §306.206, relating to Absence for Trial Placement.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §306.191 retitles the rule from “Transfers Between State Mental Health Facilities” to “Transfers Between State Hospitals” to update terminology. The proposed amendment in subsection (d) clarifies that the state hospital initiating the transfer must also notify the designated LMHA, LBHA, or LIDDA of the transfer.

The proposed amendment to §306.192 retitles the rule from “Transfers Between a State Mental Health Facility and a State Supported Living Center” to Transfers Between a State Hospital and a State Supported Living Center” to update terminology.

The proposed amendment to subsection (a)(1)(A) updates a rule reference and makes other minor editing changes. The proposed amendment to subsection (b)(1)(C) clarifies the rules and statutes governing the transfer of an individual from an SSLC to a state hospital by adding “Texas Health and Safety Code §575.012.” The proposed amendment to subsection (b)(2) clarifies that the receiving state hospital and the initiating SSLC must notify the designated LMHA, LBHA, or LIDDA of the transfer.

The proposed amendment to §306.193 retitles the rule from “Transfers Between a State Mental Health Facility and an Out-of-State Institution” to “Transfers Between a State Hospital and an Out-of-State Facility” to update terminology.

The proposed amendment to §306.194 retitles the rule from “Transfers Between a State Mental Health Facility and Another Facility in Texas” to “Transfers Between a State Hospital and Another Facility in Texas” to update terminology. The proposed amendment to subsection (a) clarifies that the section applies to a transfer between a state hospital and a psychiatric hospital not operated by HHSC. The proposed amendment to subsection (b) clarifies that an individual may transfer from a state hospital to a federal agency and requires the transferring state hospital to notify the designated LMHA or LBHA of the transfer. The proposed amendment to subsection (c) replaces “govern transfer of” to “may transfer” for clarification. The proposed amendment also updates terminology.

The proposed amendment to §306.195, in subsection (a)(1)(A), requires the originating LMHA or LBHA to ensure the CoC liaison submits requested information to the new LMHA or LBHA within seven days after a transfer request. The proposed amendment adds a new subparagraph (a)(1)(B) to require the CoC liaison to initiate transition planning with the receiving LMHA or LBHA and renumbers the subsequent subparagraphs. The proposed amendment to subsection (a)(1)(C) updates LMHA or LBHA requirements to educate the individual, or the individual’s LAR if applicable, on the provisions of the individual’s transfer. The proposed amendment adds new paragraph (2) in subsection (a) to clarify requirements for the receiving LMHA or LBHA when an individual changes LMHAs or LBHAs and renumbers the subsequent paragraphs. The proposed amendment renumbers current paragraph (2) in subsection (a) as paragraph (3), and in renumbered paragraph (3)(A)(iv), removes “the individual” as a minor editorial change.

Amending 26 TAC §§306.201 – 306.205, 306.207, to impose new discharge planning and implementation obligations on state hospitals or CPBs, clarify the scope and powers of a mental health peer specialist or recovery support peer specialist, retitle rules, correct phrases under the new amendment, and remove obsolete language.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER D. MENTAL HEALTH SERVICES–ADMISSION, CONTINUITY, AND DISCHARGE
DIVISION 5. DISCHARGE AND ABSENCES FROM A STATE MENTAL HEALTH FACILITY OR FACILITY WITH A CONTRACTED PSYCHIATRIC BED
26 TAC §§306.201 – 306.205, 306.207

OVERVIEW

HHSC proposes the repeal of §306.206, relating to Absence for Trial Placement.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §306.201, in subsection (a), requires the state hospital or CPB to send an electronic admission initial notification within three business days to the appropriate LMHA, LBHA, and LIDDA to initiate discharge planning. The proposed amendment to subsection (b) requires the state hospital or CPB to initiate coordination of discharge planning. The proposed amendment to subsection (b)(2) adds a requirement for the state hospital or CPB to invite the LMHA, LBHA, or LIDDA, to routine recovery or treatment plan meetings with at least 24-hour notification of the meeting. The proposed amendment to subsection (b)(3) clarifies that the state hospital or CPB must coordinate discharge planning with the LMHA, LBHA, or LIDDA before the individual’s discharge. The proposed amendment adds a paragraph (4) in subsection (b) to require the LMHA or LBHA to facilitate the transition of individuals who are determined by the state hospital or CPB to be medically appropriate for discharge by connecting them to resources available in the individual’s county of residence or choice. The proposed amendment to §306.201 subsection (c)(2) clarifies requirements for the state hospital or CPB, and the LMHA, LBHA, or LIDDA to jointly identify, recommend, and help coordinate access to and supports for the individual and the individual’s LAR if applicable. The proposed amendment to subsection (c)(3) clarifies requirements for the LMHA, LBHA, CoC liaison, or LIDDA continuity of care worker, to establish referrals to housing services and support. The proposed amendment to subsection (c)(4) requires the LMHA or LBHA CoC liaison, or LIDDA continuity of care worker, to identify potential providers and resources for the services and supports recommended and arrange for provision of services upon discharge to align with Texas Health and Safety Code §534.0535. The proposed amendment to subsection (c)(5) clarifies that the state hospital or CPB must attempt to educate the individual, and the individual’s LAR if applicable, to prepare them for care after discharge or if the individual is on a pass or furlough from the facility. The proposed amendment to subsection (c)(7) adds LIDDAs as an entity that must comply with the PASSR requirements and replaces “recommended to move” with “referred” for clarity. The proposed amendment to subsection (d)(1) clarifies requirements for the discharge plan. The proposed amendments to subsection (d)(1)(A) – (C) removes “The SMHF or facility with a CPB documents” for clarity; adds proposed new §306.201(d)(1)(D) that requires the discharge plan to include documentation of arrangements and referrals, and renumbers subsequent paragraphs. The proposed amendment to subsection (d)(1)(E) replaces the word “problems” with “behavioral health symptoms” and replaces “issues” with “symptoms” for clarity. The proposed amendment to subsection (d)(1)(J)(ii) clarifies the required time frame for providing and paying for medication. The proposed amendment to subsection (d)(5)(B) updates the process for when an LMHA or LBHA disagrees with the treatment team’s decision concerning discharge. The proposed amendment to subsection (e)(1) clarifies that discharge notification requires authorization by the individual or the individual’s LAR, if applicable. The proposed amendment to subsection (e)(2) adds “who voluntarily consented for the individual’s own admission” to discharge procedures when an individual is at least 16, but less than 18 years of age, and a 72-hour time frame for notifying the individual’s family or any identified person providing support of the individual’s discharge for clarification. The proposed amendment to subsection (e)(3) adds “must” to impose a requirement for the state hospital or DPB to notify the minor’s LAR of the discharge. The proposed amendment to subsection (f)(1)(A) clarifies and adds two new requirements for a state hospital or CPB if the LAR or the LAR’s designee is unwilling to retrieve the minor upon discharge and the LAR is not a state agency. The proposed amendment to subsection (g)(1) clarifies a state hospital or CPB must inform the designated LMHA, LBHA, or LIDDA of the individual’s anticipated or unexpected discharge and convey the contact information of the individual, or the individual’s LAR if applicable. The proposed amendment to subsection (g)(4) revises the requirement to include the individual’s destination address after discharge, or while on pass or furlough. The proposed amendment to subsection (g)(7) adds “an ID, or a DD” as information provided to the designated LMHA, LBHA, or LIDDA before discharge. The proposed amendment to subsection (h)(2) removes extraneous information pertaining to an individual’s records. The proposed amendment to subsection (i)(2) replaces “staff with an equivalent credential to a social worker” with “designee” for clarity. The proposed amendment to subsection (j)(1) includes a LIDDA as a collaborator for secure transportation for an individual’s discharge. The proposed amendment adds a new subsection (l) to require an LMHA or LBHA to provide continuity of care services designed to support joint discharge planning efforts to align with Texas Health and Safety Code §534.0535. The proposed amendment updates terminology as needed throughout the section and updates rule references.

The proposed amendment to §306.202, subsection (a) clarifies that a mental health peer specialist or recovery support peer specialist can provide non-clinical supports, and updates the terminology for these roles. The proposed amendment creates new subsection (b) to align with Texas Health and Safety Code §534.053 and renumbers the subsequent subsections. The proposed amendment to renumbered subsection (g)(1)(A) clarifies that an individual committed to a state hospital or a CPB under Texas Code of Criminal Procedure Article 46B.102, may only be discharged by order of the committing court, and in (g)(1)(B) clarifies that an individual committed to a state hospital or a CPB under Texas Code of Criminal Procedure Article 46B.073 must be discharged and transferred in accordance with Texas Code of Criminal Procedure Articles 46B.081. The proposed amendment to renumbered subsection (g)(2) clarifies that an individual committed to a state hospital or CPB under Texas Code of Criminal Procedure Chapter 46C may only be discharged by order of the committing court. The proposed amendment to renumbered subsection (h)(1)(A), (B), and (C) adds “LBHA” to replace one of the two references to “LMHA” to correct these rules. The proposed amendment to renumbered subsection (h)(1)(C) adds “required in paragraph (1)(A) of this subsection” for clarity. The proposed amendment updates terminology as needed and makes minor editing change. The term “face-to-face” is also replaced throughout the section with “in-person” for clarity.

The proposed amendment to §306.203 retitles the rule from “Discharge of an Individual Voluntarily Receiving Treatment” to “Discharge of an Individual Voluntarily Receiving Inpatient Treatment” to clarify the type of treatment. The proposed amendment adds “must” in subsections (b)(2) and (d)(2)(B) and (C), to clarify requirements regarding discharge requests. The proposed amendment in subsection (e)(1)(A) removes “treatment as a patient” and adds “and released to the minor’s LAR” to subsection (e)(1)(B) for clarification regarding discharge. The proposed amendment to subsection (f) clarifies that when withdrawing the request for discharge, an individual documents and signs a written statement. The proposed amendment updates terminology and the titles of a division and a rule referenced in the section and makes other minor editorial changes.

The proposed amendment to §306.204 replaces “facility with a CPB administrator” with “administrator of the CPB” throughout subsection (b) for clarity and makes corrections by adding “state hospital or” to all instances of “CPB” in subsection (c)(3). The proposed amendment also adds that coverage for psychoactive medications also applies when an individual is on a pass under (c)(3).

The proposed amendment to §306.205 retitles the rule from “Pass or Furlough from a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed” to “Pass or Furlough from a State Hospital or a Facility with a Contracted Psychiatric Bed” to update terminology. The proposed amendment replaces the current subsection (a) with new subsection (a) to clarify the pass or furlough requirements for an individual under consideration for discharge. The proposed amendment adds new subsection (b) to clarify the circumstances when a state hospital or CPB administrator may contact a peace officer. The proposed amendment adds new subsection (c) to clarify that the LMHA or LBHA must ensure an individual receives proper care and medical attention if detained in a nonmedical facility by a peace officer and renumbers the subsequent subsections. The proposed amendment to renumbered subsection (d) replaces “authorized absence that exceeds 72 hours” with “furlough” for clarity. The proposed amendment to renumbered subsection (d)(3) and (4) clarify the hearing officer’s role and responsibilities after an administrative hearing regarding a furlough concludes. The proposed amendment to renumbered subsection (d)(5) replaces “absence” with “furlough” for clarity. The proposed amendment to renumbered subsection (e) replaces “absences” with “a pass or furlough” for clarity.

The proposed amendment to §306.207 retitles the rule from “Post Discharge or Absence for Trial Placement: Contact and Implementation of the Recovery or Treatment Plan ” to “Post Discharge or Furlough: Contact and Implementation of the Recovery or Treatment Plan” to update terminology and changes the formatting from paragraphs to subsections. The proposed amendment adds “within seven days after discharge” in subsection (a)(2), and adds a new paragraph (3) to require the designated LMHA or LBHA to ensure the successful transition of individuals determined by the state hospital or CPB to be medically appropriate for discharge in accordance with Texas Health and Safety Code §534.0535 to align with statute.

Amending 26 TAC §306.206, to remove unnecessary terminology.

OVERVIEW

HHSC proposes the repeal of §306.206, relating to Absence for Trial Placement.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed repeal of §306.206 is necessary because the terminology “ATP–absence for trial placement” is no longer used in Subchapter D.

Amending 26 TAC §306.221, to retitle the rule and propose a new subchapter H, Behavioral Health Services–Telecommunications.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER D. MENTAL HEALTH SERVICES–ADMISSION, CONTINUITY, AND DISCHARGE
DIVISION 6. TRAINING
26 TAC §306.221

OVERVIEW

HHSC proposes the repeal of §306.206, relating to Absence for Trial Placement.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §306.221 retitles the rule from “Screening and Intake Assessment Training Requirements at a State Mental Health Facility and a Facility with a Contracted Psychiatric Bed” to “Screening and Intake Assessment Training Requirements at a State Hospital and a Facility with a Contracted Psychiatric Bed” and makes other editing changes where needed to update terminology.

Proposed new Subchapter H, Behavioral Health Services–Telecommunications

Amending 26 TAC §§306.361, 306.363, 306.365, 306.367, 306.369, to establish the methods and parameters of service delivery for individuals receiving general-revenue funded behavioral health services; the scope of the rules to apply to LMHAs, LBHAs, substance use intervention providers, substance use treatment providers, and their subcontracted providers; and documentation requirements when rendering services.

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM
SUBCHAPTER H. BEHAVIORAL HEALTH SERVICES–TELECOMMUNICATIONS
26 TAC §§306.361, 306.363, 306.365, 306.367, 306.369

OVERVIEW

HHSC proposes the repeal of §306.206, relating to Absence for Trial Placement.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

Proposed new §306.361 describes that the purpose of new Subchapter H is to establish methods and parameters of service delivery for individuals receiving general-revenue funded behavioral health services that the Texas Health and Human Services Commission determines are clinically effective and cost-effective in accordance with Texas Government Code §531.02161.

Proposed new §306.363 establishes that the rules apply to LMHAs, LBHAs, substance use intervention providers, substance use treatment providers, and their subcontracted providers.

Proposed new §306.365 defines terms used in the proposed new subchapter.

Proposed new §306.367 establishes parameters for the delivery of services using audiovisual or audio-only technology under this subchapter if permitted by provider’s state license, permit, or other legal authorization. Proposed new subsection (b) requires providers adhere to Medicaid policy, procedures, rules, and guidance. Proposed new subsection (c) allows providers delivering behavioral health services that do not have a procedure code billable in Medicaid to deliver the service either in person, by audiovisual technology, or by audio-only technology. Proposed new subsection (d) sets forth the requirements for a provider delivering behavioral health services by audiovisual technology or by audio-only technology as permitted under proposed new Subchapter H. Proposed new subsection (e) requires a provider to ensure any software or technology used complies with all applicable state and federal requirements and confidentiality and data encryption requirements.

Proposed new §306.369, in subsection (a), requires a provider to accurately document the services rendered, identify the method of service delivery, and adhere to the same documentation requirements for behavioral health services delivered by audiovisual or audio-only technology as for service delivery in person. Proposed new subsection (b) requires a provider, prior to delivering a behavioral health service by audio-only technology, to obtain informed consent from the individual, or the individual’s LAR if applicable, and sets forth requirements for documentation of informed consent. Proposed new subsection (c) requires providers to adhere to documentation requirements in accordance with publications and conditions described in proposed new §306.367(b) if the general revenue-funded behavioral health service has a procedure code that is billable in Medicaid.

Amending 26 TAC §§307.101, 307.103, 307.105, 307.107, 307.109, 307.111, 307.113, 307.115, 307.117, 307.119, 307.121, 307.123, 307.125, 307.127, 307.129, 307.131, to remove obsolete terms, phrases, and references; add new or amend existing definitions; revise titles and updates cross-references; and reorganize the section.

CHAPTER 307. BEHAVIORAL HEALTH PROGRAMS
SUBCHAPTER C. JAIL-BASED COMPETENCY RESTORATION PROGRAM
26 TAC §§307.101, 307.103, 307.105, 307.107, 307.109, 307.111, 307.113, 307.115, 307.117, 307.119, 307.121, 307.123, 307.125, 307.127, 307.129, 307.131

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §307.101, concerning Purpose; §307.103, concerning Application; §307.105, concerning Definitions; §307.107, concerning Program Eligibility Requirements; §307.109, concerning Service Standards; §307.111, concerning Provider Staff Member Training; §307.113, concerning Policies and Procedures; §307.115, concerning Individual Eligibility; §307.117, concerning Admission; §307.119, concerning Rights of Individuals Receiving JBCR Services; §307.121, concerning Treatment Planning; §307.123, concerning Competency Restoration Education; §307.125, concerning Procedures for Determining Competency Status in a JBCR Program; §307.127, concerning Preparation for Discharge from a JBCR Program; §307.129, concerning Outcome Measures; and §307.131, concerning Compliance with Statutes, Rules, and Other Documents.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement Senate Bill 49, 87th Legislature, Regular Session, 2021, which amended Texas Code of Criminal Procedure (CCP) Chapter 46B concerning procedures regarding defendants who are or may be individuals with a mental illness or intellectual disability. The amended rules in this proposal align the existing rules with CCP Chapter 46B by removing references to the pilot program, defining when the initial competency restoration period and an extension begin, updating requirements for a jail-based competency restoration (JBCR) psychiatrist or psychologist, and allowing JBCR programs to continue competency restoration services after 60 days if the individual has not yet restored under certain circumstances. The amended rules require new JBCR policies and procedures to ensure consistency in staff training and program operations and expands upon the policies and procedures for development of a safety plan. The proposal also updates cross-references and terminology for clarity and makes minor grammatical and editorial changes for accuracy, understanding, and uniformity.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §307.101 removes information about pilot and county-based programs due to the expiration of CCP Article 46B.090. The terms “jail-based competency restoration,” “intellectual disability,” and “substance use disorder” are replaced with their respective acronyms as minor editorial changes.

The proposed amendment to §307.103 replaces “LMHA or LBHA subcontractor” with “or a subcontractor of an LMHA or LBHA” as an editorial change. The proposed amendment removes references to other entities delivering jail-based competency restoration services due to the expiration of CCP Article 46B.090, and adds language clarifying that the subchapter applies to all JBCR programs implemented by counties regardless of their funding source.

The proposed amendment to §307.105 adds a definition for Extension; amends the definitions for Competency restoration, IST–Incompetent to stand trial, JBCR–Jail-based competency restoration, and JBCR program; and deletes the Local unit of general purpose government definition to align with Texas Code of Criminal Procedure Chapter 46B. The proposed amendment deletes the following definitions as they are no longer used in the rule text: Provider, Specially trained jailer, and State mental health facility, and deleted the following definitions as they did not need to be defined: Subcontractor and Texas Commission on Jail Standards. The proposed amendment adds or amends the following definitions to clarify and align with other rules: Business day, CFR–Code of Federal Regulations, Competency restoration training module, Day, Good standing, ID–intellectual disability, In-patient mental health facility, Legally authorized representative, LIDDA–Local intellectual and developmental disability authority, LMHA–Local mental health authority, Mental illness, Non-clinical services, OCR–outpatient competency restoration, Program staff member, QMHP-CS–Qualified mental health professional-community services, Safety plan, SUD–Substance use disorder, TAC–Texas Administrative Code, and Treatment team. The proposed amendment renumbers the definitions to account for the new definitions and changes made to existing definitions.

The proposed amendment to §307.107 revises the title to “JBCR Program Eligibility Requirements,” updates the cross-reference in subsection (a), removes reference to the pilot program, and removes paragraphs (1) and (2) related to the pilot program to reflect repeal of Texas Code of Criminal Procedure Article 46B.090, relating to the JBCR pilot program. The proposed amendment to subsection (b) removes the reference to “county-based” and Texas Code of Criminal Procedure Article 46B.091. Proposed new subsection (c) clarifies the requirement that the LMHA or LBHA must contract with a county or counties to provide JBCR services. Through the proposed amendment, previous subsection (c) becomes subsection (d), and the proposed amendment updates the cross-reference to 25 TAC Chapter 412.

The proposed amendment to §307.109 removes subsection (a) related to the JBCR pilot program, and subsection (b) becomes assumed subsection (a). The proposed amendment adds the language in former subparagraph (A) to paragraph (1). The proposed amendment removes reference to “county-based” and clarifies that services must be provided by “licensed professionals, QMHP-CSs, or QIDPs as permitted by their professional license or certification.” The proposed amendment adds new paragraph (5) to align with Article 46B.091, requiring that the program’s JBCR must operate in the jail in a designated space that is separate from the space used for the general population of the jail, and subsequent paragraphs are renumbered. The proposed amendment clarifies in paragraph (7) that treatment should be provided to individuals as clinically indicated; adds new paragraph (8) to align with Article 46B.091, requiring JBCR programs to supply clinically appropriate psychoactive medications in accordance with Texas Code of Criminal Procedure Article 46B.086 or Texas Health and Safety Code Chapter 574; and adds new paragraph (9) clarifying the requirement that JBCR programs assess individuals for suicidality and homicidality and develop a safety plan.

The proposed amendment to §307.111 revises the title to “JBCR Program Staff Member Training” and corrects cross-references in subsection (a)(1) – (3) and (b)(1). The proposed amendment to subsection (b)(3) replaces HHSC’s Office of the Ombudsman with the Department of Family and Protective Services for reporting abuse, neglect, and exploitation.

The proposed amendment to §307.113 adds new paragraph (1) requiring policies and procedures for maintaining a list of each program staff member providing JBCR, including position and credentials, reporting structure, and responsibilities. The proposed amendment also adds new paragraph (2) regarding maintaining program staff member training records to ensure accurate and consistent program oversight. Previous paragraph (1) becomes paragraph (3). Proposed amendments to paragraph (3) clarify that program eligibility is determined by the JBCR program and updates the cross-reference. Proposed new paragraph (5) specifies what a safety plan must document to ensure accurate record keeping of prevention and management of crises. Proposed amendments to paragraph (6) replace “ability to monitor” with “process to assess, evaluate” to align with Chapter 46B requirements and add cross-references. Proposed amendments to paragraph (7) replace “ensures ongoing” with “coordinates with the jail provider to address continuity of” to clarify what is required of the provider and updates the cross reference. Proposed new paragraph (8) adds required policies and procedures for educating an individual about the individual’s rights while participating in the JBCR program; proposed new paragraph (9) adds required policies and procedures for coordinating with the court concerning the JBCR program’s ability to provide services to a new participant within 72 hours after admission; and proposed new paragraph (10) adds required policies and procedures for accommodating individual needs through adaptive materials and approaches, as needed.

The proposed amendment to §307.115 removes original subsection (a), as it related to the court determination of incompetency and proposes new subsection (a) to clarify the requirements relating to screening individuals for admission to the JBCR program if an OCR program is available. Proposed amendments to subsection (b) clarify requirements that JBCR screening must occur before the JBCR program makes a recommendation to the court regarding the individual’s eligibility for the JBCR program if an OCR program is not available. Previous subsection (c) becomes subsection (b).

The proposed amendment to §307.117 adds new subsection (a) requiring a JBCR program to admit an individual to JBCR upon receipt of a court order requiring the individual to participate in JBCR under Texas Code of Criminal Procedure Chapter 46B, Subchapter D. The proposed amendment also implements S.B. 49 by adding new subsection (b) to specify when the initial competency restoration period begins. Previous subsection (a) becomes amended subsection (c) and clarifies that a participant must be served within 72 hours of admission to the JBCR program. Previous subsection (b) becomes subsection (d), and the proposed amendment for subsection (d) makes a minor grammatical edit and updates the statutory reference.

The proposed amendment to §307.119 revises the title to “Rights of Individuals Receiving JBCR” and updates the cross-reference in paragraph (1).

The proposed amendment to §307.121 clarifies language and adds a cross-reference to assumed subsection (a), makes a minor grammatical edit to paragraph (7), amends paragraph (8) to replace substance use disorder with the acronym “SUD,” and proposes new paragraph (9) requiring the treatment plan to include specific non-clinical services and supports needed by the individual after discharge to capture all areas of individual needs to be assessed when developing the treatment plan.

The proposed amendment to §307.123 clarifies that required accommodations include “accommodations for language barriers and disabilities” in subsection (c) and removes the required review of progress in subsection (d) to implement S.B. 49 amendments to CCP Chapter 46B.

The proposed amendment to §307.125 updates the requirements of the JBCR psychiatrist or psychologist for re-evaluating an individual’s competency to align with the S.B. 49 amendments to Article 46B.091. The proposed amendment to subsection (a) requires that the psychiatrist or psychologist must evaluate an individual’s competency and report to the court as required by CCP Article 46B.079. Proposed amendments to subsection (b) address the requirements when the psychologist or psychiatrist believes the individual has restored to competency or is unlikely to restore to competency in the foreseeable future. Proposed new subsection (c) requires the JBCR program to continue to serve a participant if the participant has not restored to competency by the 60th calendar day unless notified that space is available at a facility or OCR program, as appropriate, and the required timeframes remain for the individual’s commitment. Proposed new subsection (d) requires that the JBCR program coordinate with the court and county jail to ensure that the individual is transferred to the appropriate facility or program. Proposed new subsection (e) requires the JBCR program return the individual to court for further proceedings if the individual has not restored at the end of the period authorized under the Texas Code of Criminal Procedure.

The proposed amendment to §307.127 clarifies the responsibility of the treatment team to provide continuity of care and supports after an individual is either restored to competency, is determined unlikely to restore to competency in the foreseeable future, does not restore to competency after completion of the JBCR program, or is transferred to a facility or OCR program after 60 days in the JBCR program. Proposed amendments to subsections (a) and (b) include editorial changes to clarify the lists of discharge settings.

The proposed amendment to §307.129 adds new subsection (a) to clarify that “competency as determined by the JBCR psychiatrist or psychologist” refers to the clinical opinion of the psychiatrist or psychologist provided under CCP Articles 46B.079(b) and 46B.091. Previous assumed subsection (a) becomes subsection (b). The proposed amendment in subsection (b) revises language to clarify what data must be reported to HHSC. The proposed new subparagraphs (C), (D) and (E) require JBCR programs to report the date the individual was ordered to JBCR, the date the first JBCR service was provided, and whether the court granted an extension. The proposed amendment clarifies language in relabeled subparagraphs (F) – (H) that JBCR programs should report calendar days and report the competency as determined by the JBCR program’s psychiatrist or psychologist. The proposed amendment adds new subparagraph (I) to report the number of individuals charged with a felony and not restored to competency, revises subparagraph (J) and adds new subparagraph (K) to report the number of individuals charged with a felony or a misdemeanor who are restored to competency, and revises language in relabeled subparagraphs (L) – (O) for clarification and consistency with terminology. The proposed amendments revise subparagraph (M) to include number of individuals for consistency with the other data points and add new subparagraph (P) to report the number of individuals whose charges were dismissed before completion of the JBCR program. The proposed amendment also revises subsection (b)(2) to clarify language, remove reference to “pilot program or county-based JBCR,” update a cross-reference, and add a new cross-reference.

The proposed amendment to §307.131 moves the reference to Texas Human Resources Code Chapter 48 from subsection (b)(8) to subsection (a)(2) and renumbers the subsequent paragraphs. The proposed amendment updates the title to the cross-reference in paragraph (3)(A) and references to rules in Title 25 that have transferred to Title 26. Proposed amendment to subsection (b) updates the HIPAA cross-reference, removes paragraph (b)(4), and renumbers the subsequent paragraphs. Paragraphs (b)(5) and (b)(6) include proposed amendments to statutory references to more accurately reflect requirements for JBCR programs.

The proposed amendments to §§307.105, 307.111, and 307.113, §§307.117 – 307.125, §307.129, and §307.131 replace “provider” with “program” to maintain uniformity and improve clarity.

The proposed amendments to §§307.101 – 307.109, §307.113, and §307.119 replace “JBCR services” with “JBCR” to maintain consistency and improve clarity.

The proposed amendments to §§307.101, 307.121, and 307.129 replace “JBCR program” with “JBCR” to maintain consistency and improve clarity.

HHSC made minor grammatical and editorial changes throughout the subchapter for accuracy and understanding.

Amending 26 TAC §745.11, to clarify the meaning of “Child Care Regulation” to also represent the HHSC’s Child Care Regulation department.

CHAPTER 745. LICENSING
SUBCHAPTER A. PRECEDENCE AND DEFINITIONS
DIVISION 1. DEFINITIONS FOR THE LANGUAGE USED IN THIS CHAPTER
26 TAC §745.11

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§745.11, 745.8906, 745.8911, 745.8913, 745.8914, 745.8925, 745.8933, 745.8965, 745.8967, 745.8976, and 745.9028 – 745.9030; the repeal of §§745.8901, 745.8903, 745.8905, 745.8907 – 745.8909, 745.8923, and 745.9025 – 745.9027; and new §§745.8905, 745.8907 and 745.9023 – 745.9027.

BACKGROUND AND PURPOSE

The purpose of the proposal is to update and clarify some of the rules pertaining to the licensure of administrators of general residential operations (GROs) and child-placing agencies (CPAs) to make the rules consistent with current policies, practices, and other HHSC rules; consolidate rules; update citations and titles; and improve the readability and understanding of the rules.

Some of the proposed changes update the administrator’s licensing rules related to a military member, spouse, or veteran to be consistent with the recent changes made by HHSC to §351.3 and §351.6 in Texas Administrative Code, Title 1, Part 15 that comply with Senate Bill (S.B.) 422, 88th Legislature, Regular Session, 2023, including (1) updating the expedited application process for a military member, spouse, or veteran who applies for an administrator’s license or to act as an administrator without a license, by clarifying that Child Care Regulation (CCR) will process the application within 30 days after CCR receives the application; (2) adding that a military member who is licensed in good standing by another state with substantially equivalent requirements to Texas may apply to act as an administrator without obtaining an administrator’s license under certain circumstances, which is already allowed for a military spouse; (3) clarifying that a military spouse approved to act as an administrator without a license may continue to do so for three years from the date of the approval even if there is a divorce or similar event that changes the marital status of the military spouse; and (4) clarifying that an approval of a military member or spouse to act as an administrator without a license may not be renewed.

Other proposed changes not related to the statutory changes include (1) clarifying when a child-care administrator must have a Child-Care Administrator’s License (CCAL) or a Child-Placing Agency Administrator’s License (CPAAL), including clarifying and consolidating the exceptions and the deletion of an exception for a CPAAL; (2) clarifying that CCR will waive examination, experience, and education requirements for an applicant with a license in good standing by another state that has licensing requirements substantially equivalent to Texas, including an applicant who is a miliary member, spouse, or veteran, if the applicant meets the background check requirements and is otherwise eligible to apply for an administrator’s license; (3) updating the application requirements, including those for a military member, spouse, or veteran, to be consistent with current application and policy requirements; (4) clarifying other methods a military member, spouse, or veteran may use to demonstrate competency in the examination, experience, or education requirements for an administrator’s license; (5) waiving the replacement fee for a military member, spouse, or veteran to obtain a copy of a lost or destroyed administrator’s license or approval letter to act as an administrator without an administrator’s license; and (6) clarifying that the Child Care Enforcement Department may revoke a military member’s or spouse’s ability to act as an administrator without a license if the military member or spouse fails to comply with relevant statutes, rules, and minimum standards or if the military member or spouse is no longer licensed in good standing by another state.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.11 clarifies that the term “Child Care Regulation” also represents the Child Care Regulation department of HHSC.

Amending 26 TAC §§745.8901, 745.8903, 745.8905, 745.8907 – 745.8909, 745.8923, to repeal unnecessary rules.

CHAPTER 745. LICENSING
SUBCHAPTER N. ADMINISTRATOR’S LICENSING
DIVISION 1. OVERVIEW OF ADMINISTRATOR’S LICENSING
26 TAC §§745.8901, 745.8903, 745.8905, 745.8907 – 745.8909, 745.8923

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed repeal of §745.8901 deletes the rule as no longer necessary because the content of subsection (a) is incorporated into proposed new §745.8905 and subsection (b) is incorporated into proposed new §745.8907.

The proposed repeal of §745.8903 deletes the rule as no longer necessary because the content of subsection (a) is incorporated into proposed new §745.8905 and subsection (b) is incorporated into proposed new §745.8907.

The proposed repeal of §745.8905 deletes the rule as no longer necessary because the content is incorporated into proposed new §745.8905.

The proposed repeal of §745.8907 deletes the rule as no longer necessary because the content has been updated and incorporated into proposed new §745.8907.

The proposed repeal of §745.8908 deletes the rule as no longer necessary because the content has been updated and incorporated into proposed new §745.8907.

The proposed repeal of §745.8909 deletes the rule as no longer necessary because the content has been incorporated into proposed new §745.8907.

The proposed repeal of §745.8923 deletes the rule as no longer necessary because (1) the portion of the rule stating CCR may issue a provisional CCAL has been incorporated into proposed amended §745.8925; and (2) there is no basis in law for the exception to the one year of management or supervisory experience requirement for a CPAAL, which currently allows the Associate Commissioner for Child Care Regulation or designee to grant an exception when the applicant provides a compelling justification that the applicant’s experience qualifies the applicant to act as the licensed administrator for a CPA.

Amending 26 TAC §§745.8905 – 745.8907, 745.8911, 745.8913, 745.8914, 745.8925, to update and incorporate new terms to improve clarity and understanding.

CHAPTER 745. LICENSING
SUBCHAPTER N. ADMINISTRATOR’S LICENSING
DIVISION 1. OVERVIEW OF ADMINISTRATOR’S LICENSING
26 TAC §§745.8905 – 745.8907, 745.8911, 745.8913, 745.8914, 745.8925

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

Proposed new §745.8905 incorporates the terms “child-care administrator,” “child-placing agency administrator,” and “licensed administrator” that were previously defined in the proposed repeal of §§745.8901(a), 745.8903(a), and 745.8905. Two new terms are also added to this new rule: “another state” and “licensed in good standing by another state.”

The proposed amendment to §745.8906 (1) replaces “Licensing” and “we” with “Child Care Regulation (CCR)”; and (2) updates two citations.

Proposed new §745.8907 incorporates and updates the content from the proposed repeal of §§745.8901(b), 745.8903(b), 745.8907, 745.8908, and 745.8909 relating to when a license is required to serve as an administrator, including clarifying the exceptions for when a full CCAL is not required to serve as a child care administrator. The rule also adds an exception that does not require a child care administrator to have a full CCAL if the person has a provisional CCAL according to proposed amended §745.8913(c).

The proposed amendment to §745.8911 (1) improves the language of the rule for better readability and understanding; (2) updates a title; and (3) clarifies at §745.8911(b)(1) that the statutory exception (Texas Human Resources Code §43.003(b)) to serve as an administrator without a CCAL for a GRO that only provides emergency care services is only available if the GRO is in a county with a population of less than 40,000.

The proposed amendment to §745.8913 clarifies that CCR will waive examination, experience, and education requirements for an applicant with a license in good standing by another state if (1) CCR determines the licensing requirements in the other state are substantially equivalent to Texas, or (2) there is a reciprocity agreement between Texas and the other state. In addition, to obtain an administrator’s license under subsection (a), the applicant must meet background check requirements and be otherwise eligible to apply for an administrator’s license. The proposed rule also clarifies the language for better readability and understanding.

The proposed amendment to §745.8914 (1) replaces “Licensing” and “we” with “Child Care Regulation (CCR)”; and (2) provides an example to further clarify “scope of work authorized to be performed under the license issued by the other state.”

The proposed amendment to §745.8925 (1) clarifies that CCR may issue a provisional CCAL if certain requirements are met; and (2) clarifies the language of the rule for better readability and understanding.

Amending 26 TAC §745.8933, to update application requirements to be consistent with current policy and clarify language.

CHAPTER 745. LICENSING
DIVISION 2. SUBMITTING [YOUR] APPLICATION MATERIALS
26 TAC §745.8933

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.8933 (1) substantially updates the application requirements for different application scenarios to be consistent with current policy, including the applicable forms; and (2) clarifies the language of the rule for better readability and understanding.

Amending 26 TAC §745.8965, §745.8967, to improve readability and understanding, update titles and clarify when the Associate Commissioner or designee will review whether CCR exceeded application time frames.

CHAPTER 745. LICENSING
DIVISION 3. LICENSING’S REVIEW OF AN [YOUR] APPLICATION
26 TAC §745.8965, §745.8967

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.8965 (1) clarifies the language of the rule for better readability and understanding; and (2) updates titles.

The proposed amendment to §745.8967 (1) improves the language of the rule for better readability and understanding; (2) updates titles; and (3) clarifies that upon request the Associate Commissioner or designee will review whether CCR exceeded application timeframes.

Amending 26 TAC §745.8976, to update citations and improve readability and understanding.

CHAPTER 745. LICENSING
DIVISION 4. MAINTAINING AN [YOUR] ADMINISTRATOR’S LICENSE
26 TAC §745.8976

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.8976 (1) updates two citations; and (2) improves the language of the rule for better readability and understanding.

Amending 26 TAC §§745.9025 – 745.9027, to incorporate the proposed repeal into the updated application requirements that are consistent with current policy.

CHAPTER 745. LICENSING
DIVISION 6. MILITARY MEMBERS, MILITARY SPOUSES, AND MILITARY VETERANS
26 TAC §§745.9025 – 745.9027

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed repeal of §745.9025 deletes the rule as no longer necessary because with minor changes for clarity the rule has been incorporated into proposed new §745.9023.

The proposed repeal of §745.9026 deletes the rule as no longer necessary because the content has been further clarified and incorporated and divided into proposed new §§745.9024, 745.9025, and 745.9026.

The proposed repeal of §745.9027 deletes the rule as no longer necessary because the content has been updated and incorporated into proposed new §745.9027.

Amending 26 TAC §§745.9023 – 745.9030, to incorporate the repeals of specific sections with some changes for clarity; rewrites and incorporates repeals of certain methods; update the expedited application process for military members, spouses, or veterans; change language for improve readability and understanding; and delete unnecessary language.

CHAPTER 745. LICENSING
DIVISION 6. MILITARY MEMBERS, MILITARY SPOUSES, AND MILITARY VETERANS
26 TAC §§745.9023 – 745.9030

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

Proposed new §745.9023 incorporates the proposed repeal of §745.9025 relating to the definitions of the terms “military member,” “military spouse,” and “military veteran” with minor changes for clarity.

Proposed new §745.9024 rewrites a portion of the proposed repeal of §745.9026 by (1) replacing the term “special consideration” with “alternative licensing” for consistency with the Texas Occupations Code §55.004 and between CCR and HHSC rules; and (2) clarifying that CCR will waive examination, experience, and education requirements for a military member, spouse, or veteran who applies for an administrator’s license and either has a license in good standing by another state that has licensing requirements substantially equivalent to Texas, or previously held an administrator’s license in Texas within the last five years. To obtain a license under this rule, the applicant meets background check requirements and be otherwise eligible to apply for an administrator’s license.

Proposed new §745.9025 rewrites a portion of the proposed repeal of §745.9026 by clarifying the other methods that are available to a military member, spouse, or veteran to demonstrate competency in the examination, experience, or education requirements for an administrator’s license.

Proposed new §745.9026 (1) incorporates the portion of the repeal of §745.9026 that waives the application and examination fees for a military member, spouse, or veteran who meets the requirements to obtain an administrator’s license; and (2) adds that CCR will waive the replacement fee for a military member, spouse, or veteran to obtain a copy of a lost or destroyed administrator’s license.

Proposed new §745.9027 incorporates the proposed repeal of §745.9027 by adding a chart to include substantially updated application requirements for a military member, spouse, or veteran that are consistent with current policy, including the applicable forms.

The proposed amendment to §745.9028 updates the expedited application process for a military member, spouse, or veteran who has a license in another state and applies for an administrator’s license or to act as an administrator without a license, by clarifying that CCR will (1) determine whether the application is complete withing 21 days of receiving the application; and (2) within 30 day of receiving a complete application (A) issue the applicant an administrator’s license or approve the ability to act as administrator without having a license; or (B) forward a recommendation to the Child Care Enforcement Department to deny the applicant an administrator’s license or the ability to act as an administrator without a license. The rule also lists the reasons the Child Care Enforcement Department may deny an administrator’s license or the ability to act as an administrator.

The proposed amendment to §745.9029 clarifies the language of the rule for better readability and understanding.

The proposed amendment to §745.9030 (1) adds that a military member that is licensed in good standing by another state with substantially equivalent requirements to Texas may apply to act as an administrator without obtaining an administrator’s license under certain circumstances, which is already allowed for a military spouse; (2) improves the language of the rule for better readability and understanding; (3) deletes a definition for “license in good standing by another state” as not necessary because the definition has been incorporated into new proposed §745.8905; (4) creates a new chart to clarify that a military spouse approved to act as an administrator without a license may continue to do so for three years from the date of the approval even if there is a divorce or similar event that changes the marital status of the military spouse; (5) clarifies that a military member or spouse may request, at no cost, a replacement letter that approves the member or spouse to act as an administrator without obtaining an administrator’s license; (6) clarifies that the Child Care Enforcement Department may revoke the person’s ability to act as an administrator without a license if the person fails to comply with relevant statutes, rules, and minimum standards or if the military member or spouse is no longer licensed in good standing by another state; and (7) clarifies that an approval of a military member or spouse to act as an administrator without a license may not be renewed.

Adopted Rules Re:

Adopting 26 TAC §§363.1, 363.3, 363.5, to update references to “HHSC” instead of terms such as “HHSC” and “department”; minor administrative edits; update references to “health care provider” instead of “provider of assistance”; and move the eligibility rules from §363.1(b) and (c) in the proposed amendment to §363.1.

CHAPTER 363. COUNTY INDIGENT HEALTH CARE PROGRAM
SUBCHAPTER A. PROGRAM ADMINISTRATION
26 TAC §§363.1, 363.3, 363.5

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §363.1, concerning State Assistance Fund; §363.3, concerning Eligibility Dispute; §363.53, concerning Residence; §363.59, concerning Resources; and §363.101, concerning Basic and Optional Services; and new §363.5, concerning Eligibility of a County for State Assistance.

Section 363.101 is adopted with changes to the proposed text as published in the June 7, 2024, issue of the Texas Register (49 TexReg 4015). This rule will be republished. Sections 363.1, 363.3, 363.5, 363.53, and 363.59 are adopted without changes to the proposed text as published in the June 7, 2024, issue of the Texas Register (49 TexReg 4015). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The adopted rules are necessary to comply with House Bill 4510, 88th Legislature, Regular Session, 2023, which authorized HHSC to require a county to provide certain tax information for the purpose of determining eligibility for state assistance under the County Indigent Health Care Program (CIHCP). The adopted rules also reflect the previous transfer of program administration from the Department of State Health Services (DSHS) to HHSC and improve clarity throughout the chapter.

Adopting 26 TAC §363.53, §363.59, to clarify who qualifies as a county resident and updates references to “HHSC” from “DSHS.”

CHAPTER 363. COUNTY INDIGENT HEALTH CARE PROGRAM
SUBCHAPTER B. DETERMINING ELIGIBILITY
26 TAC §363.53, §363.59

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 26 TAC §363.101, to update references to “HHSC” from “DSHS.”

CHAPTER 363. COUNTY INDIGENT HEALTH CARE PROGRAM
SUBCHAPTER C. PROVIDING SERVICES
26 TAC §363.101

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 26 TAC §554.101, to add a definition for “reportable conduct.”

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER B. DEFINITIONS
26 TAC §554.101

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §554.101, concerning Definitions; §554.405, concerning Additional Requirements for Trust Funds in Medicaid-certified Facilities; §554.601, concerning Freedom from Abuse, Neglect, and Exploitation; and §554.1920, concerning Operating Policies and Procedures.

The amendments to §554.101 and §554.1920 are adopted without changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1638). These rules will not be republished.

The amendments to §554.405 and §554.601 are adopted with changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1638). These rules will be republished.

BACKGROUND AND JUSTIFICATION

The amended rules implement two bills from the 88th Legislature, Regular Session, 2023. House Bill (H.B.) 1009 relates to employment suspension for nursing facility employees accused of committing reportable conduct such as abuse, neglect, or exploitation. Senate Bill (S.B.) 240 relates to health facility employee workplace violence prevention in facilities, including nursing facilities. Non-substantive edits update references in the rules.

Adopting 26 TAC §554.405, to reduce the amount of time nursing facilities are given to complete corrective action plans to return to compliance before the imposition of a hold on payments due to the facility.

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER E. RESIDENT RIGHTS
26 TAC §554.405

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 26 TAC §554.601, to update references and implement H.B. 1009 which relates to reportable conduct and employment suspension.

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER G. FREEDOM FROM ABUSE, NEGLECT, AND EXPLOITATION
26 TAC §554.601

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 26 TAC §554.1920, to implement S.B. 240 which concerns workplace violence and prevention policies and procedures.

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER T. ADMINISTRATION
26 TAC §554.1920

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 26 TAC §555.2, §555.3,to update definitions and remove the cost of a duplicate license.

CHAPTER 555. NURSING FACILITY ADMINISTRATORS
SUBCHAPTER A. GENERAL INFORMATION
26 TAC §555.2, §555.3

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §555.2, concerning Definitions; §555.3, concerning Schedule of Fees; §555.11, concerning Application Requirements; §555.12, concerning Licensure Requirements; §555.13, concerning Internship Requirements; §555.14, concerning Preceptor Requirements; §555.15, concerning Preceptor Certification; §555.16, concerning Preceptor Certification Renewal; §555.18, concerning Examinations and Requirements to Take the Examinations; §555.31, concerning Initial License; §555.32, concerning Provisional License; §555.33, concerning Duplicate License; §555.34, concerning License Renewal; §555.35, concerning Continuing Education Requirements for License Renewal; §555.36, concerning Late Renewals; §555.38, concerning Inactive Status; §555.39, concerning Voluntary Surrender of a License; §555.40, concerning Reinstatement; §555.41, concerning Licensure of Persons with Criminal Backgrounds; §555.42, concerning Alternate Licensing Requirements for Military Service Personnel; §555.51, concerning Referral and Complaint Procedures; §555.53, concerning Formal Hearings; §555.54, concerning Rule of Statutory Violations; §555.55, concerning Violations of Standards of Conduct; §555.56, concerning Violations by Unlicensed Persons; and §555.57, concerning Schedule of Sanctions.

The amendments to §§555.2, 555.3, 555.11 – 555.16, 555.18, 555.31 – 555.36, 555.38 – 555.42, 555.53, 555.54, 555.56, and 555.57 are adopted without changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1652). These rules will not be republished.

The amendments to §555.51 and §555.55 are adopted with changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1652). These rules will be republished.

BACKGROUND AND JUSTIFICATION

The amended rules implement two bills from the 88th Texas Legislature, Regular Session, 2023. House Bill (H.B.) 4123 relates to HHSC obtaining criminal history information from the Federal Bureau of Investigation (FBI) and Texas Department of Public Safety for nursing facility administrator (NFA) applicants. Senate Bill (S.B.) 681 relates to Texas Occupation Code, Chapter 53, exemption for HHSC Long-Term Care Regulation (LTCR)-regulated Nursing Facility Administrators. This rule project adopts revisions related to the Texas Unified Licensure Information Portal (TULIP), with the purpose of changing from a paper process to a digital process. Non-substantive edits update references in the rules.

Adopting 26 TAC §§555.11 – 555.16, 555.18, to implement H.B. 4123 regarding FBI criminal history and to update the rule to reflect the current automated process using TULIP.

CHAPTER 555. NURSING FACILITY ADMINISTRATORS
SUBCHAPTER B. REQUIREMENTS FOR LICENSURE
26 TAC §§555.11 – 555.16, 555.18

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 26 TAC §§555.31 – 555.36, 555.38 – 555.42, to implement H.B. 4123 concerning FBI criminal history and update rule to reflect the current automated process using TULIP.

CHAPTER 555. NURSING FACILITY ADMINISTRATORS
SUBCHAPTER C. LICENSES
26 TAC §§555.31 – 555.36, 555.38 – 555.42

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 26 TAC §§555.51, 555.53 – 555.57, to implement H.B. 4123 regarding criminal convictions and make substantive grammar edits.

CHAPTER 555. NURSING FACILITY ADMINISTRATORS
SUBCHAPTER D. REFERRALS, COMPLAINT PROCEDURES, AND SANCTIONS
26 TAC §§555.51, 555.53 – 555.57

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 26 TAC §§556.2 – 556.14, to implement House Bill 4123 and Senate Bill 681 regarding Health and Human Services Commission (HHSC) requests for certified nurse aide (CNA) criminal history information and HHSC Long-Term Care Regulation exemptions for regulated certified nurse aids, respectively, as well as digitizing the Texas Unified Licensure Information Portal (TULIP).

CHAPTER 556. NURSE AIDES
26 TAC §§556.2 – 556.14

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §556.2, concerning Definitions; §556.3, concerning NATCEP Requirements; §556.4, concerning Filing and Processing an Application for a Nurse Aide Training and Competency Evaluation Program (NATCEP); §556.5, concerning Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements; §556.6, concerning Competency Evaluation Requirements; §556.7, concerning Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP); and §556.8, concerning Withdrawal of Approval of a NATCEP; §556.9, concerning Certificate of Registration, Nurse Aide Registry, and Renewal; new §556.10, concerning Certification of Individuals with Criminal Convictions in Their Backgrounds; §556.11, concerning Expiration of the Certificate of Registration and Active Status; §556.12, concerning Waiver, Reciprocity, and Exemption Requirements; §556.13, concerning Findings and Inquiries; and §556.14, concerning Alternative Licensing Requirements for Military Service Personnel; and the repeal of §556.10, concerning Expiration of the Certificate of Registration and Active Status; §556.11, concerning Waiver, Reciprocity, and Exemption Requirements; §556.12, concerning Findings and Inquiries; §556.13, concerning Alternate Licensing Requirements for Military Service Personnel; and §556.100, concerning Nurse Aide Transition from Temporary Status.

The amendments to §§556.4, 556.5, 556.7, and 556.8; new §§556.11, 556.13, and 556.14; and the repeal of §§556.10 – 556.13 and 556.100 are adopted without changes to the proposed text as published in the March 29, 2024, issue of the Texas Register (49 TexReg 2039). These rules will not be republished.

The amendments to §§556.2, 556.3, 556.6, 556.9, 556.10, and 556.12 are adopted with changes to the proposed text as published in the March 29, 2024, issue of the Texas Register (49 TexReg 2039). These rules will be republished.

BACKGROUND AND JUSTIFICATION

The amendments, new sections, and repeals implement one bill from the 88th Texas Legislature, Regular Session, 2023. Senate Bill (S.B.) 681 relates to the Texas Occupations Code, Chapter 53, exemption for HHSC Long-Term Care Regulation (LTCR)-regulated Certified Nurse Aides (CNAs). Implementation of House Bill (H.B.) 4123 was removed from this project. Implementation of this bill would allow HHSC to pursue Federal Bureau of Investigation (FBI)-based fingerprinting of certified nurse aides. It was removed from this project because HHSC is currently pursing FBI approval of its processes; however, that approval was not received prior to the deadline for rule adoption implementation. Once approved, HHSC will re-initiate rulemaking to implement this legislation. The amendments specify form numbers in addition to form names to ensure stakeholders understand which form is being referenced. This rule project adopts revisions related to the Texas Unified Licensure Information Portal (TULIP), with the purpose of changing from a paper process to a digital process. Non-substantive edits update references in the rules.

Adopting 26 TAC §§556.10 – 556.13, 556.100, to allow non-substantive grammar edits and relating to the end of the Nurse Aide Transition from Temporary Status enforced during the COVID-19 public health emergency.

CHAPTER 556. NURSE AIDES
26 TAC §§556.10 – 556.13, 556.100

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 26 TAC §§557.101, 557.103, 557.105, 557.107, 557.109, 557.111, 557.113, 557.115, 557.117, 557.119, 557.121, 557.123, 557.125, 557.127 – 557.129, to update references, make non-substantive grammar edits, and implement H.B. 4123.

CHAPTER 557. MEDICATION AIDES–PROGRAM REQUIREMENTS
26 TAC §§557.101, 557.103, 557.105, 557.107, 557.109, 557.111, 557.113, 557.115, 557.117, 557.119, 557.121, 557.123, 557.125, 557.127 – 557.129

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §557.101, concerning Introduction; §557.103, concerning Requirements for Administering Medications; §557.105, concerning Allowable and Prohibited Practices of a Medication Aide; §557.107, concerning Training Requirements; Nursing Graduates; Reciprocity; §557.109, concerning Application Procedures; §557.111, concerning Examination; §557.113, concerning Determination of Eligibility; §557.115, concerning Permit Renewal; §557.117, concerning Changes; §557.119, concerning Training Program Requirements; §557.121, concerning Permitting of Persons with Criminal Backgrounds; §557.123, concerning Violations, Complaints, and Disciplinary Actions; §557.125, concerning Requirements for Corrections Medication Aides; §557.127, concerning Application Processing; §557.128, concerning Home Health Medication Aides; and §557.129, concerning Alternate Licensing Requirements for Military Service.

The amendments to §§557.101, 557.103, 557.105, 557.107, 557.109, 557.111, 557.113, 557.115, 557.117, 557.119, 557.121, 557.123, 557.125, 557.127, 557.128 and 557.129 are adopted without changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1667). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amended rules implement two bills from the 88th Texas Legislature, Regular Session, 2023. House Bill (H.B.) 4123 relates to HHSC obtaining criminal history information from the Federal Bureau of Investigation (FBI) and Texas Department of Public Safety for medication aide (MA) applicants. Senate Bill (S.B.) 681 relates to the Texas Occupations Code, Chapter 53, exemption for HHSC Long-Term Care Regulation (LTCR)-regulated MAs. This rule project adopts revisions related to the Texas Unified Licensure Information Portal (TULIP), with the purpose of changing from a paper process to a digital process. Non-substantive edits update references in the rules.

Adopted Rule Reviews Re:

Adopting Title 1, Part 15, concerning Medicaid and Children’s Health Insurance Program Provider Enrollment.

The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 1, Part 15, of the Texas Administrative Code (TAC):

Chapter 352, Medicaid and Children’s Health Insurance Program Provider Enrollment

Adopting Title 26, Part 1, concerning Rights and Protection of Individuals with an Intellectual Disability.

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

Chapter 334, Rights and Protection of Individuals with an Intellectual Disability

In Addition Re:

Public Notice – Texas State Plan for Medical Assistance Amendment

The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendments will be effective October 1, 2024.

Texas Department of State Health Services

Proposed Rules Re:

Amending 25 TAC §289.301, to clarify requirements, expand the scope of the rule, add new definitions, impose new requirements for the application and use lasers.

CHAPTER 289. RADIATION CONTROL
SUBCHAPTER G. REGISTRATION REGULATIONS
25 TAC §289.301

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of State Health Services (DSHS), proposes an amendment to §289.301, concerning Registration and Radiation Safety Requirements for Lasers and Intense-Pulsed Light Devices.

BACKGROUND AND PURPOSE

The purpose of the proposal is to amend Texas Administrative Code, Title 25, Chapter 289 concerning registration and radiation safety requirements for lasers and intense-pulsed light devices. The proposed amendment adds and clarifies registration requirements, personnel requirements, facility requirements, and radiation machine requirements to protect workers and the public from laser radiation machine hazards.

The signage requirements are updated to match the guidelines set forth by the American National Standards Institute (ANSI). Specific warning labels, such as “Danger,” “Warning,” and “Caution,” communicate the potential hazards associated with laser operations and promote a safer working environment for employees and visitors. Referencing the standard allows laser facilities to adhere to the most current national standards, which are often proposed and updated faster than regulatory amendments can be implemented.

SECTION-BY-SECTION SUMMARY

The proposed amendment replaces “agency” with “department,” “title” with “chapter,” and “shall” with “must.” Edits are made to improve grammar and clarity, update references, and clarify laser class throughout the rule. Formatting edits are made to update numbering.

The proposed amendment to §289.301(a)(2) adds language to “class of laser” to include both International Electrotechnical Commission (IEC) and United States Food and Drug Administration (FDA) classifications.

The proposed amendment to §289.301(a)(3)(A) requires users of a Class 3B or Class 4 laser to register with DSHS.

The proposed amendment to §289.301(a)(3)(B) expands the application of the rule to anyone who receives, possesses, uses, owns, or acquires a Class 3B or Class 4 laser.

The proposed amendment to §289.301(b)(1) adds language requiring veterinary facilities to follow applicable laser rules.

The proposed amendment to §289.301(c)(2)(C)(i)-(ii) adds requirements and exemptions for research facilities.

The proposed amendment to §289.301(d) adds definitions of “American National Standards Institute (ANSI),” “engineering controls,” “laser light show,” “manufacturer,” “personal protective equipment (PPE),” “practitioner,” “supervision,” “veterinarian,” and “veterinary medicine.” The subsection amends definitions of “access to laser radiation,” “accessible laser radiation,” “class 1 (I) laser, IEC Class 1 and 1M,” “class 2 (II) laser, IEC Class 2 and 2M,” “class 3a (IIIa) laser, IEC Class 3R,” “class 3b (IIIb) laser, IEC Class 3B,” “class 4 (IV) laser, IEC Class 4,” “coherent,” “collateral radiation,” “continuous wave,” “controlled area,” “divergence,” “electromagnetic radiation,” “electronic product,” “energy,” “healing arts,” “infrared radiation,” “inoperable,” “Institutional Review Board (IRB),” “intense-pulsed light (IPL) device,” “invisible radiation,” “joule,” “laser,” “laser product,” “laser safety officer (LSO),” “maximum permissible exposure (MPE),” “medical event,” “mobile service operation,” “nominal hazard zone (NHZ),” “optical density,” “protective housing,” “provider of lasers,” “pulse duration,” “pulsed laser,” “reflection,” “transmission,” “ultraviolet radiation,” “visible radiation (light),” and “wavelength (&lgr;).” The proposal deletes “apparent visual angle” and “practitioner of the healing arts (practitioner).”

The proposed amendment to §289.301(g)(1)(C) updates RC form 226-01 for laser registration and requires the form to contain the legal name of the entity or business.

The proposed amendment to §289.301(g)(2)(D) clarifies laser machines may only be operated by a person qualified by training and experience to use the laser machines.

The proposed amendment to §289.301(g)(3)(B) requires that applications to use Class 3B or Class 4 lasers in industrial, academic, and research and development institutions, be signed by the applicant or registrant, or a person duly authorized to act for and on behalf of the applicant or registrant, and the Laser Safety Officer (LSO).

The proposed amendment to §289.301(g)(4) requires companies that service laser machines to register with DSHS. The application must be signed by the applicant, registrant, or a person duly authorized to act on behalf of the applicant or registrant, and the LSO. Additionally, service companies are required to verify the facility has a valid certificate of registration issued by DSHS before providing services. The language “application for demonstration for the purpose of sales of Class 3b or 4 lasers” was removed.

The proposed amendment to §289.301(g)(5) requires an application for a laser light show be signed by the applicant, registrant, or a person duly authorized to act on behalf of the applicant or registrant, and the LSO. The language “application for providers and the application for alignment, calibration, and/or repair of Class 3b or 4 lasers” was removed.

The proposed amendment to §289.301(h)(1) clarifies a certificate of registration application will only be approved if DSHS determines the application meets all requirements of the chapter.

The proposed amendment to §289.301(j)(1) requires the registrant to comply with the section and the conditions of the certificate of registration.

The proposed amendment to §289.301(j)(2) requires the registrant to designate an LSO and ensures the LSO performs the duties required of the subsection (p).

The proposed amendment to §289.301(j)(3) prohibits a person from making, selling, leasing, transferring, or lending lasers unless such machines and equipment meet the applicable requirements of this section.

The proposed amendment to §289.301(j)(7) adds language registrants must follow in the event of a bankruptcy.

The proposed amendment to §289.301(j)(11) requires an individual to apply for a certificate of registration within 30 days of beginning to use the laser machines.

The proposed amendment to §289.301(j)(12) prohibits a service company from providing laser services to a person who cannot produce evidence of a completed application for registration, or a valid certificate of registration issued by DSHS, except for the initial installation or for demonstration and sales.

The proposed amendment to §289.301(j)(13) adds requirements for a person authorized to perform alignment, calibration, installation, and repair of lasers, in Texas, to maintain a daily log that includes the date of service, name, customer address, certificate of registration number, and records of all services for inspection.

The proposed amendment to §289.301(j)(14) adds requirements for providers of lasers. Providers are required to keep a log of lasers supplied in Texas and only provide lasers to facilities with a valid certificate of registration.

The proposed amendment to §289.301(j)(15) adds requirements for a person authorized to demonstrate and sell lasers in Texas. The registrant is required to maintain records, perform demonstrations only on phantoms, and prohibits deliberate exposure to an individual unless ordered by a licensed practitioner of the healing arts.

The proposed amendment to §289.301(j)(16) adds requirements for a person using loaner laser machines to apply for a certificate of registration or amend a valid certificate of registration within 30 days of receiving the machine.

The proposed amendment to §289.301(l)(1)(A) clarifies the request for termination must be signed by the LSO, owner, or an individual authorized to act on behalf of the registrant.

The proposed amendment to §289.301(n)(3) clarifies that DSHS will notify a registrant in writing, of the department’s intent to suspend or revoke a certificate of registration and be provided an opportunity to demonstrate compliance before proceedings to suspend or revoke begin.

The proposed amendment §289.301(o) removes the language concerning bankruptcy and places the language in §289.301(j)(7).

The proposed amendment to §289.301(u)(3) updates laser signage and posting requirements to include updated language in the Danger, Warning, and Caution signs. The updated signage and posting requirements replace §289.301(dd).

The proposed amendment to §289.301(cc) requires records and documentation be maintained at each site, including mobile services. This subsection replaces §289.301(ee).

Adopted Rules Re:

Adopting 25 TAC §229.40, §229.41, to replace wording for consistency.

CHAPTER 229. FOOD AND DRUG
SUBCHAPTER D. REGULATION OF COSMETICS
25 TAC §229.40, §229.41

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts amendments to §§229.40, 229.41, 229.241 – 229.252, and 229.419 – 229.430. The amendments to §§229.40, 229.41, 229.241 – 229.252, and 229.419 – 229.430 are adopted without changes to the proposed text as published in the June 14, 2024, issue of the Texas Register (49 TexReg 4177), and therefore will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments to Texas Administrative Code, Title 25, Chapter 229, Subchapters D, O, and W reflect current federal law, statute, and rule references since the rules were last adopted. The amendments revise and add definitions to clarify intent and improve compliance, update agency addresses and websites, and include clarifying language to ensure consistency in interpretation of the rules.

Adopting 25 TAC §§229.241 – 229.252, to replace wording for consistency, update references, and edit language for clarity and consistency.

CHAPTER 229. FOOD AND DRUG
SUBCHAPTER O. LICENSING OF WHOLESALE DISTRIBUTORS OF NONPRESCRIPTION DRUGS–INCLUDING GOOD MANUFACTURING PRACTICES
25 TAC §§229.241 – 229.252

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopting 25 TAC §§229.419 – 229.430, to replace wording for consistency, update references, and edit language for clarity and consistency.

CHAPTER 229. FOOD AND DRUG
SUBCHAPTER W. LICENSING OF WHOLESALE DISTRIBUTORS OF PRESCRIPTION DRUGS–INCLUDING GOOD MANUFACTURING PRACTICES
25 TAC §§229.419 – 229.430

OVERVIEW

BACKGROUND AND JUSTIFICATION

Adopted Rule Reviews Re:

Adopting Title 25, Part 1, concerning Miscellaneous Provisions.

The Texas Health and Human Services Commission (HHSC), in its own capacity and on behalf of the Texas Department of State Health Services (DSHS), adopts the review of the chapter below in Title 25, Part 1, of the Texas Administrative Code (TAC):

Chapter 1, Miscellaneous Provisions

In Addition Re:

Withdrawal of Designation of Practice Serving Medically Underserved Populations

On May 14, 2019, the Texas Department of State Health Services (the department) approved the designation of MD Kids Pediatrics, located at 181 Gus Rallis Drive, El Paso, Texas 79932, as a practice serving a disproportionate number of clients eligible for federal, state, or locally funded health care programs. This designation met the definition set for in Texas Occupations Code §157.051(11)(F)(b).

The department is required, under 25 Texas Administrative Code §13.35, to verify a practice’s continued eligibility for designation as a practice serving a medically underserved population no more than two years after its initial designation and within each two-year period thereafter.

Accordingly, the department has identified the above-mentioned practice as no longer meeting the criteria for designation, and therefore, the designation has been withdrawn.

Texas Optometry Board

Adopted Rules Re:

Repealing 22 TAC §271.1, to remove the rule in its entirety.

CHAPTER 271. EXAMINATIONS
22 TAC §271.1

OVERVIEW

The Texas Optometry Board adopts the following repeal to 22 TAC Title 14 Chapter 271 Examinations. The Board adopts the repeal of §271.1 Definitions as published in the June 14, 2024, issue of the Texas Register (49 TexReg 4129). The repeal will not be republished.

Adopting 22 TAC §§271.2, 271.6, 271.8 – 271.12, to allow anyone who does not qualify for the Optometric Glaucoma Certification to be licensed as a therapeutic optometrist in Texas.

CHAPTER 271. EXAMINATIONS
22 TAC §§271.2, 271.6, 271.8 – 271.12

OVERVIEW

Adopting 22 TAC §§272.1 – 272.9, to update the agency’s rules to better comply with various statutes that require the agency to have administrative rules on these issues.

CHAPTER 272. ADMINISTRATION
22 TAC §§272.1 – 272.9

OVERVIEW

The Texas Optometry Board (Board) adopts amendments and new sections to 22 TAC Title 14 Chapter 272 Administration. Section 272.9 is adopted with changes to the proposed text as published in the June 14, 2024, issue of the Texas Register (49 TexReg 4133). The text of the rule will be republished. Sections 272.1 – 272.8 are adopted without changes to the proposed text as published in the June 14, 2024, issue of the Texas Register (49 TexReg 4133). These rules will not be republished.

Adopting 22 TAC §§273.1, 273.4 – 273.10, 273.18, to update the agency’s rules to better comply with various statutes that require the agency to have administrative rules on these issues.

CHAPTER 273. GENERAL RULES
22 TAC §§273.1, 273.4 – 273.10, 273.18

OVERVIEW

The Texas Optometry Board (Board) adopts amendments to 22 TAC Title 14 Chapter 273 General Rules. Section 273.6 is adopted with changes to the proposed text as published in the June 14, 2024, issue of the Texas Register (49 TexReg 4137). The text of the rule will be republished. Sections 273.1, 273.4, 273.5, 273.7 – 273.10, and 273.18 are adopted without changes to the proposed text as published in the June 14, 2024, issue of the Texas Register (49 TexReg 4137). The text of the rules will not be republished.

Repealing 22 TAC §273.11, to remove the rule in its entirety.

CHAPTER 273. GENERAL RULES
22 TAC §273.11

OVERVIEW

Adopting 22 TAC §§280.1, 280.5, 280.9, to clarify the application process for both applicants and staff.

CHAPTER 280. THERAPEUTIC OPTOMETRY
22 TAC §§280.1, 280.5, 280.9

OVERVIEW

The Texas Optometry Board (Board) adopts amendments to 22 TAC Title 14 Chapter 280 Therapeutic Optometry without changes to the proposed text as published in the June 14, 2024, issue of the Texas Register (49 TexReg 4144). The rules will not be republished.

Repealing 22 TAC §§280.2, 280.3, 280.8, to remove the rule.

CHAPTER 280. THERAPEUTIC OPTOMETRY
22 TAC §§280.2, 280.3, 280.8

OVERVIEW

The Texas Optometry Board adopts the following repeal to 22 TAC Title 14 Chapter 280 – Therapeutic Optometry. The Board adopts the repeal of §280.2 Required Education; §280.3 Certified Therapeutic Optometrist Examination; and §280.8 Optometric Glaucoma Specialist: Required Education, Examination and Clinical Skills Evaluation as published in the June 14, 2024, issue of the Texas Register (49 TexReg 4143) and corrected in the June 21, 2024, issue of the Texas Register (49 TexReg 4630). The repeal will not be republished.