18 Sep 2020

Texas Register September 18, 2020 Volume: 45 Number: 38

by | posted in: Advisory Board of Athletic Trainers, Governor, Texas Board of Nursing, Texas Commission on Jail Standards, Texas Department of State Health Services, Texas Department on Aging and Disability Services, Texas Health and Human Services Commission, Texas Medical Board |

Texas Register Table of Contents

Governor

 

Appointments

Governor appoints three new members to the Statewide Health Coordinating Council

Appointments for September 9, 2020Appointed to the Statewide Health Coordinating Council, for terms to expire August 31, 2025:Doris J. Jackson, D.H.A. of Pearland, Texas (replacing Nancy W. Yuill, Ph.D. of Sugar Land, whose term expired).2025, Cheryl T. Sparks, Ed.D. of Big Spring, Texas (replacing Elva L. C. LeBlanc, Ph.D. of Fort Worth, whose term expired).Bharath Thankavel, M.D. of Dallas, Texas (replacing Salil V. Deshpande, M.D. of Houston, whose term expired).

Governor

Appointments

Governor appoints Elizabeth J. “Betty” Protas, Ph.D., as presiding officer of the Statewide Health Coordinating Council

Appointments for September 9, 2020Designated as presiding officer of the Statewide Health Coordinating Council, for a term to expire at the pleasure of the Governor, Elizabeth J. “Betty” Protas, Ph.D. of League City (replacing Ayeez A. Lalji, D.D.S. of Sugar Land).

Governor

Notices

Proclamation 41-3765: Renewing the COVID-19 disaster proclamation for all counties in Texas

OVERVIEWIn accordance with the authority vested by Section 418.014 of the Texas Government Code, Governor hereby renews the disaster proclamation for all counties in Texas.Pursuant to Section 418.017, Governor authorizes the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.Pursuant to Section 418.016, any regulatory statute prescribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforcement of any state statute or administrative rule regarding contracting or procurement would impede any state agency’s emergency response that is necessary to cope with this declared disaster, I hereby suspend such statutes and rules for the duration of this declared disaster for that limited purpose.BACKGROUND AND JUSTIFICATION Governor’s rationale for issuing Proclamation 41-3765 is listed in this week’s edition of the Texas Register (45 Tex Reg 6413).

Texas Medical Board

Emergency Rule

Amending 22 TAC §174.5 to allow the use of telemedicine in prescribing controlled substances for the treatment of chronic pain during COVID-19

CHAPTER 174. TELEMEDICINESUBCHAPTER A. TELEMEDICINE22 TAC §174.5OVERVIEWThe Texas Medical Board (Board) adopts, on an emergency basis, amendments to 22 TAC §174.5, effective September 3, 2020, at 12:01 a.m.The emergency amendment would allow physicians to continue to utilize telemedicine to issue refill prescriptions for scheduled medications to established chronic pain patients if the physician determines that such telemedicine treatment is needed due to the COVID-19 pandemic.BACKGROUND AND JUSTIFICATION On March 13, the Governor of Texas certified COVID-19 as posing an imminent threat of disaster to the public health and safety and declared a state of disaster in all counties of Texas. On March 19, 2020, the Texas Governor issued a waiver suspending the strict enforcement of §174.5(e)(2)(A) which generally prohibits the utilization of telemedicine to prescribe scheduled drugs for the treatment of chronic pain. The waiver was issued in order to protect public health and curb the spread of COVID-19 by providing patients access to schedule drugs needed to ensure on-going treatment of chronic pain and avoid potential adverse consequences associated with the abrupt cessation of pain medication. The current emergency rule expires at 11:59 p.m. on September 2, 2020. In light of the impending expiration of emergency rule §174.5, the Board adopts, on an emergency basis, amendments to 22 TAC §174.5.Therefore, the emergency amendment to §174.5(e) is immediately necessary to help the state’s physicians, physician assistants and other health care professionals continue to mitigate the risk of exposure to COVID-19 and provide necessary medical services to related to chronic pain management with controlled substances for patients. Pursuant to the Governor’s declaration of disaster issued on March 13, 2020, related to COVID-19, physicians determining whether to utilize telemedicine medical services for the treatment of chronic pain with scheduled medications, must give due consideration to additional important parameters to ensure the safety of the patient.

Texas Department of State Health Services

Emergency Rule

Renewing the amendment to 25 TAC §448.911 to temporarily allow Chemical Dependency Treatment Facilities to provide services through electronic means

CHAPTER 448. STANDARD OF CARESUBCHAPTER I. TREATMENT PROGRAM SERVICES25 TAC §448.911OVERVIEWThe Department of State Health Services is renewing the effectiveness of emergency amended §448.911 for a 60-day period. The text of the emergency rule was originally published in the May 22, 2020, issue of the Texas Register (45 TexReg 3403).HHSC is re-adopting the emergency rule amendment to §448.911(a)(1) to temporarily permit a licensed Chemical Dependency Treatment Facility (CDTF) to provide treatment services through electronic means to adult and adolescent clients in order to reduce the risk of COVID-19 transmission.BACKGROUND AND JUSTIFICATIONAs authorized by Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this amendment of Treatment Services Provided by Electronic Means.

Texas Health and Human Services Commission

Proposed Rules

Repealing 1 TAC §351.829 to remove rules related to the Promoting Independence Advisory Committee, which was abolished in 2017

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICESSUBCHAPTER B. ADVISORY COMMITTEESDIVISION 1. COMMITTEES1 TAC §351.829OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §351.829, concerning the Promoting Independence Advisory Committee. Section 351.829 is repealed because the Promoting Independence Advisory Committee was abolished on September 1, 2017.BACKGROUND AND JUSTIFICATIONThe purpose of the proposal is to repeal a rule for an advisory committee that no longer functions. The Promoting Independence Advisory Committee rule indicates that the Committee was abolished in 2017, but the rule has yet to be repealed.

Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §351.801 to clarify general provisions applying to all HHSC advisory committees

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICESSUBCHAPTER B. ADVISORY COMMITTEESDIVISION 1. COMMITTEES1 TAC §351.801OVERVIEWThe Executive Commissioner proposes amendments to §351.801, concerning Authority and General Provisions.The proposed amendment to §351.801 defines the term “family member” to clarify the term throughout the subchapter and clarifies the definition of “Health and Human Services system.” The general rule also clarifies that every advisory committee, not just a committee established under Texas Government Code §531.012, is subject to Texas Government Code Chapter 2110 unless the statute establishing that committee expressly provides otherwise.BACKGROUND AND JUSTIFICATIONThe purpose of the proposal is to amend certain rules to extend advisory committees that are set to be abolished, to revise certain committees’ membership and tasks to incorporate duties related to persons on the autism spectrum, to align the rules with statute and statutory interpretations, to clarify terms, and to repeal a rule for an advisory committee that no longer functions.

Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §351.815 to extend the abolishment date and clarify requirements of the Policy Council for Children and Families

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICESSUBCHAPTER B. ADVISORY COMMITTEESDIVISION 1. COMMITTEES1 TAC §351.815OVERVIEWThe Executive Commissioner proposes amendments to §351.815, concerning the Policy Council for Children and Families.The proposed amendment to §351.815 extends the abolition date of the Policy Council for Children and Family until December 31, 2024. It adds a task to encompass issues related to children on the autism spectrum and changes membership categories to accommodate this change. It removes a reference to a statute that no longer exists; clarifies the due date for reports under subsection (d)(1); adds a subsection regarding open meetings and a subsection regarding training requirements. The proposed section also provides for one-quarter of all membership terms to expire each year in an effort to provide greater continuity and allows a member whose term is expiring to apply to serve one additional term. Organizational and formatting edits are made for consistency and clarity.BACKGROUND AND JUSTIFICATIONThe purpose of the proposal is to amend certain rules to extend advisory committees that are set to be abolished, to revise certain committees’ membership and tasks to incorporate duties related to persons on the autism spectrum, to align the rules with statute and statutory interpretations, to clarify terms, and to repeal a rule for an advisory committee that no longer functions.In 2015, the Texas Legislature removed 38 advisory committees from HHSC that were established by statute and, by adopting Texas Government Code §531.012, authorized the Executive Commissioner to establish advisory committees by rule. The Executive Commissioner’s advisory committee rules were effective July 1, 2016. The Policy Council for Children and Families and the Texas Council on Consumer Direction are set to be abolished in 2020, and HHSC intends to continue them for four years. In rules effective on January 27, 2020, and published in the January 24, 2020, issue of the Texas Register (45 TexReg 523), HHSC extended the Texas Autism Council until December 31, 2020. HHSC announced at that time that it would work to identify other, already existing advisory committees that could effectively address issues faced by persons on the autism spectrum. These proposed rules revise two advisory committee rules to accommodate those issues concerning children: §351.815, concerning the Policy Council for Children and Families; and §351.833, concerning the STAR Kids Managed Care Advisory Committee. We continue to look for a new “home” committee to accommodate autism-spectrum-related issues for adults.

Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §351.817 to 1 TAC §351.817 to extend the abolishment date and clarify requirements of the Texas Council on Consumer Direction

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICESSUBCHAPTER B. ADVISORY COMMITTEESDIVISION 1. COMMITTEES1 TAC §351.817OVERVIEWThe Executive Commissioner proposes amendments to §351.817, concerning the Texas Council on Consumer Direction.The proposed amendment to §351.817 extends the Texas Council on Consumer Direction to July 31, 2024. It also clarifies that the Council has both voting and nonvoting members, but the total number of all members does not exceed 24 in compliance with Texas Government Code §2110.002(a). The due date for reporting requirements is updated in subsection (d). Subsections regarding open meetings and training requirements are added to this section. Organizational and formatting edits are made for consistency and clarity.BACKGROUND AND JUSTIFICATIONThe purpose of the proposal is to amend certain rules to extend advisory committees that are set to be abolished, to revise certain committees’ membership and tasks to incorporate duties related to persons on the autism spectrum, to align the rules with statute and statutory interpretations, to clarify terms, and to repeal a rule for an advisory committee that no longer functions.In 2015, the Texas Legislature removed 38 advisory committees from HHSC that were established by statute and, by adopting Texas Government Code §531.012, authorized the Executive Commissioner to establish advisory committees by rule. The Executive Commissioner’s advisory committee rules were effective July 1, 2016. The Policy Council for Children and Families and the Texas Council on Consumer Direction are set to be abolished in 2020, and HHSC intends to continue them for four years. 

Texas Health and Human Services Commission

Proposed Rules

Amending 1 TAC §351.827 to remove the abolishment date and clarify requirements of the Palliative Care Interdisciplinary Advisory Council

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICESSUBCHAPTER B. ADVISORY COMMITTEESDIVISION 1. COMMITTEES1 TAC §351.827OVERVIEWThe Executive Commissioner proposes amendments to §351.827, concerning the Palliative Care Interdisciplinary Advisory Council.The proposed amendment to §351.827 deletes the abolition date of the Palliative Care Interdisciplinary Advisory Council and provides that the Council will continue as long as the state law establishing it remains in effect. The proposal clarifies that the Council has both voting and nonvoting members, the total number of which does not exceed 24 in compliance with Texas Government Code § 2110.002(a). It provides for one-quarter of all membership terms to expire each year in an effort to provide greater continuity. Subsections regarding open meetings and training requirements are added to this section. Organizational and formatting edits are made for consistency and clarity.BACKGROUND AND JUSTIFICATIONThe purpose of the proposal is to amend certain rules to extend advisory committees that are set to be abolished, to revise certain committees’ membership and tasks to incorporate duties related to persons on the autism spectrum, to align the rules with statute and statutory interpretations, to clarify terms, and to repeal a rule for an advisory committee that no longer functions.In 2015, the Texas Legislature removed 38 advisory committees from HHSC that were established by statute and, by adopting Texas Government Code §531.012, authorized the Executive Commissioner to establish advisory committees by rule.  The rule governing the Palliative Care Interdisciplinary Council (which is established by statute other than §531.012) is amended to extend the Council for so long as the statute establishing the Council remains in effect. 

Advisory Board of Athletic Trainers

Proposed Rules

Amending 1 TAC §351.833 to update membersrhip and meeting requirements for the STAR Kids Managed Care Advisory Committee

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICESSUBCHAPTER B. ADVISORY COMMITTEESDIVISION 1. COMMITTEES1 TAC §351.833OVERVIEWThe Executive Commissioner proposes amendments to §351.833, concerning STAR Kids Managed Care Advisory Committee.The proposed amendment to §351.833 revises membership on the STAR Kids Managed Care Advisory Committee to require the appointment of family members of children on the autism spectrum who are Medicaid recipients. Subsections regarding open meetings and training requirements are added to this section. Organizational and formatting edits are made for consistency and clarity.BACKGROUND AND JUSTIFICATIONThe purpose of the proposal is to amend certain rules to extend advisory committees that are set to be abolished, to revise certain committees’ membership and tasks to incorporate duties related to persons on the autism spectrum, to align the rules with statute and statutory interpretations, to clarify terms, and to repeal a rule for an advisory committee that no longer functions.In rules effective on January 27, 2020, and published in the January 24, 2020, issue of the Texas Register (45 TexReg 523), HHSC extended the Texas Autism Council until December 31, 2020. HHSC announced at that time that it would work to identify other, already existing advisory committees that could effectively address issues faced by persons on the autism spectrum. These proposed rules revise two advisory committee rules to accommodate those issues concerning children: §351.815, concerning the Policy Council for Children and Families; and §351.833, concerning the STAR Kids Managed Care Advisory Committee. We continue to look for a new “home” committee to accommodate autism-spectrum-related issues for adults.

Texas Health and Human Services Commission

Proposed Rules

New 1 TAC §351.841, relocating and reorganizing rules governing the Joint Committee on Access and Forensic Services

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICESSUBCHAPTER B. ADVISORY COMMITTEESDIVISION 1. COMMITTEES1 TAC §351.841OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Texas Administrative Code (TAC) Title 1, Part 15, Chapter 351, Subchapter B, Division 1, new §351.841, concerning Joint Committee on Access and Forensic Services.BACKGROUND AND JUSTIFICATION The purpose of the proposed new rule is to move HHSC rules in 25 TAC Chapter 411 to 1 TAC Chapter 351 as part of consolidating HHSC advisory committee rules into one place. Moving the Joint Committee on Access and Forensic Services (JCAFS) rule to Chapter 351 will make it easier to locate since the HHSC advisory committee rules are located in 1 TAC Chapter 351, Subchapter B. The proposed new rule is reorganized and updated. The proposed new rule adds two new provisions that are not substantive changes to the current rules in 25 TAC Chapter 411 so it does not result in new or increased requirements for JCAFS. The proposed repeal of 25 TAC Chapter 411 appears elsewhere in this issue of the Texas Register.

Texas Health and Human Services Commission

Proposed Rules

Repealing 1 TAC §354.1177, which currently governs the Electronic Visit Verification (EVV) System for Medicaid health services

CHAPTER 354. MEDICAID HEALTH SERVICESSUBCHAPTER A. PURCHASED HEALTH SERVICESDIVISION 11. GENERAL ADMINISTRATION1 TAC §354.1177The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §354.1177, concerning Electronic Visit Verification (EVV) System, in Subchapter A, Division 11.The proposed repeal of §354.1177, Electronic Visit Verification (EVV) System, deletes the rule that is no longer necessary, because the rules for EVV will be addressed in the proposed new Chapter 354, Subchapter O.

Texas Health and Human Services Commission

Proposed Rules

New 1 TAC, Chapter 354, Subchapter O, consolidating and clarifying rules for the Electronic Visit Verification (EVV) System for Medicaid health services

CHAPTER 354. MEDICAID HEALTH SERVICESSUBCHAPTER O. ELECTRONIC VISIT VERIFICATION1 TAC §§354.4001, 354.4003, 354.4005, 354.4007, 354.4009, 354.4011, 354.4013OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §354.4001, concerning Purpose and Authority; §354.4003, concerning Definitions; §354.4005, concerning Applicability; §354.4007, concerning EVV System; §354.4009, concerning Requirements for Claims Submission and Approval; §354.4011, concerning Member Rights and Responsibilities; and §354.4013, concerning Additional Requirements, in new Subchapter O, Electronic Visit Verification.BACKGROUND AND JUSTIFICATIONHHSC currently has rules concerning EVV in Titles 1 and 40 of the Texas Administrative Code (TAC). The purpose of this proposal is to consolidate the EVV rules into one location, implement federal and state requirements for the Texas EVV system, and remove unnecessary or duplicative rules from TAC. The repeals for the EVV-related rules in 40 TAC, Chapter 68, are proposed elsewhere in this issue of the Texas Register.The Texas EVV System began as a state-mandated system and is in the process of changing in compliance with current state law and newly enacted federal law. An EVV system electronically verifies information relating to the delivery of services, such as the type of service provided; the name of the member who received the service; the name of the provider who provided the service; the date the service was provided; and the time the service began and ended. HHSC requires the use of an EVV system to help ensure that members receive services authorized for their care, to ensure accurate Medicaid payments, and to prevent fraud, waste and abuse.The proposed new rules apply to program providers, Consumer Directed Services (CDS) employers, Financial Management Services Agencies (FMSAs), service providers, members, and managed care organizations (MCOs). The proposed new rules list the services subject to the use of EVV.SECTION-BY-SECTION SUMMARYProposed new §354.4001 describes the purpose of the rules in Subchapter O and references the federal and state laws that authorize HHSC to implement the requirements of the rules.Proposed new §354.4003 provides definitions for terminology used in the subchapter.Proposed new §354.4005 states that the rules in Subchapter O apply to a program provider, a CDS employer, an FMSA, a service provider, a member, and an MCO unless otherwise specified in the rules. The proposed new rule also lists the services subject to the use of EVV.Proposed new §354.4007 (1) requires the use of an EVV system by program providers, CDS employers, and FMSAs to electronically document delivery of the services listed in §354.4005; (2) lists data elements that must be included to verify service delivery in order to receive payment for an EVV-relevant claim; and (3) provides mandates related to the accuracy of the data. The rule also addresses mandatory HHSC and MCO access to the EVV system and documentation.Proposed new §354.4009 outlines the requirements for accurately submitting an EVV-relevant claim for reimbursement and the consequences for non-compliance with the rule. The proposed rule also addresses program provider requirements and requirements for CDS employers and FMSAs.Proposed new §354.4011 addresses the notices that HHSC and the MCOs must provide relating to compliance with EVV and requires HHSC or the MCO to provide members with notice of their rights and responsibilities regarding EVV.Proposed new §354.4013 requires that program providers, CDS employers, FMSAs, service providers, members, and MCOs must administer the EVV requirements in an effective, accurate, and efficient manner, in compliance with all state and federal laws, rules, regulations, policies, and guidelines. The proposed rule also addresses compliance with the EVV Policy Handbook, obligations under contract or law regarding documentation requirements, and compliance with applicable federal and state laws regarding confidentiality of a member’s information.

Texas Department of State Health Services

Proposed Rules

Repealing 25 TAC §411.1 and §411.3, which currently contain rules governing the Joint Committee on Access and Forensic Services

CHAPTER 411. STATE MENTAL HEALTH AUTHORITY RESPONSIBILITIESSUBCHAPTER A. JOINT COMMITTEE ON ACCESS AND FORENSIC SERVICES25 TAC §411.1, §411.3OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of Texas Administrative Code (TAC), Title 25, Chapter 411, Subchapter A, Joint Committee on Access and Forensic Services, in its entirety, including §411.1, concerning Definitions and §411.3, concerning Joint Committee on Access and Forensic Services.The proposed repeal of §411.1 and §411.3 allows the rules to be proposed as new in 1 TAC Chapter 351, Subchapter B.BACKGROUND AND JUSTIFICATION As required by Texas Government Code §531.0201(a)(2)(C), client services functions previously performed by the Department of State Health Services were transferred to HHSC on September 1, 2016, in accordance with Texas Government Code §531.0201 and §531.02011. The purpose of this proposal is to repeal 25 TAC Chapter 411, Subchapter A, concerning Joint Committee on Access and Forensic Services, in its entirety, and propose substantially similar new rules in 1 TAC Chapter 351, Subchapter B, concerning Advisory Committees. The new rule is proposed simultaneously elsewhere in this issue of the Texas Register.

Texas Commission on Jail Standards

Proposed Rules

Amending 37 TAC §273.7 and §273.8 to make a non-substantive change regarding oversight of the Tuberculosis Screening Plan by DSHS

CHAPTER 273. HEALTH SERVICES37 TAC §273.7, §273.8The Texas Commission on Jail Standards proposes to make a non-substantive change to §273.7 (Tuberculosis Screening Plan) and §273.8 (Memorandum of Understanding) concerning the tuberculosis screening plan. The proposed amendment to 37 TAC §273 changes the term “Tuberculosis Elimination Division of the Department of State Health Services” to “appropriate branch of the Department of State Health Services.” This change enables the rule to remain appropriate and correct even if the title or duties of the particular State Health Services Division changes again.

Texas Department on Aging and Disability Services

Proposed Rules

Repealing 40 TAC §§68.101 – 68.103, which currently contain duplicative rules regarding the Electronic Visit Verification (EVV) System for Medicaid health services

CHAPTER 68. ELECTRONIC VISIT VERIFICATION (EVV) SYSTEM40 TAC §§68.101 – 68.103OVERVIEWExecutive Commissioner of HHSC proposes the repeal of §68.101, concerning Application; §68.102, concerning Definitions; and §68.103, concerning Use and Availability of EVV System, in Texas Administrative Code (TAC), Title 40, Part 1, Chapter 68, Electronic Visit Verification (EVV) System.The proposed repeal of §§68.101 – 68.103 deletes rules that are no longer necessary, because the rules for EVV will be addressed in proposed new Subchapter O in 1 TAC Chapter 354.BACKGROUND AND JUSTIFICATIONAs required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation of and provision of services by the health and human services system, including rules in Title 40, Part 1. HHSC currently has rules concerning EVV in Titles 1 and 40 of the TAC. The purpose of this proposal is to remove unnecessary or duplicative rules from TAC. The repeal of EVV-related rules in 1 TAC, Chapter 354, Subchapter A and new rules in 1 TAC, Chapter 354, Subchapter O are proposed elsewhere in this issue of the Texas Register.

Texas Medical Board

Withdrawn Rule

Withdrawing the emergency adoption of 22 TAC §174.5, which allowed the prescription of certain scheduled drugs for the treatment chronic pain using telemedicine

CHAPTER 174. TELEMEDICINESUBCHAPTER A. TELEMEDICINE22 TAC §174.5The Texas Medical Board withdraws the emergency adoption of the amendment to §174.5 which appeared in the July 10, 2020, issue of the Texas Register (45 TexReg 4598).The emergency allowed physicians to utilize telemedicine to issue refill prescriptions for scheduled medications to established chronic pain patients if the physician determines that such telemedicine treatment is needed due to the COVID-19 pandemic.Pursuant to Section 2001.034 and 2001.036(a)(2) of the Texas Government Code, the emergency amendment was to be in effect for only 60 days or the duration of the time period that the Governor’s disaster declaration of March 13, 2020, in response to the COVID-19 pandemic is in effect, whichever is shorter, pursuant to Section 2001.034 of the Texas Government Code. 

Texas Department of State Health Services

In Addition

Commissioner has filed a notice of objection to certain definitions in DEA’s interim final rule on marihuana, tetrahydrocannabinols, and other marihuana-related constituents

OVERVIEWCommissioner of the Texas Department of State Health Services, John Hellerstedt, M.D., has filed a notice of objection to the Drug Enforcement Administration’s interim final rule amending the regulatory controls over marihuana, tetrahydrocannabinols, and other marihuana-related constituents in the Controlled Substances Act.FURTHER EXPLANATION  On August 21, 2020, the Acting Administrator of the Drug Enforcement Administration (DEA) issued an interim final rule making four conforming changes to DEA’s existing scheduling regulations. The interim final rule was published in the Federal Register, Volume 85, Number 163, pages 51639-51645 and was effective August 21, 2020. Pursuant to Section 481.034(g), as amended by the 75th legislature, of the Texas Controlled Substances Act, Health and Safety Code, Chapter 481, the commissioner may object during the 30-day period beginning on the day after the date of publication in the Federal Register of a final order designating a substance as controlled or deleting a substance from the schedules.The interim final rule modifies 21 CFR 1308.11(d)(31) by adding language stating that the definition of “Tetrahydrocannabinols” does not include “any material, compound, mixture or preparation that falls within the definition of hemp set forth in 7 U.S.C 1639o.” The commissioner objects to this modification.The interim final rule modifies 21 CFR 1308.11(d)(58) by stating that the definition of “Marihuana Extract” is limited to extracts “containing greater than 0.3 percent delta-9-tetrahydrocannabinol on a dry weight basis.” The commissioner objects to this modification.In the capacity as Commissioner of the Texas Department of State Health Services, John Hellerstedt, M.D., does hereby object to the modifications of the two definitions to the extent that the definitions allow for the presence or addition of tetrahydrocannabinols aside from the presence of delta-9-tetrahydrocannabinol. Multiple tetrahydrocannabinol isomers and variants may have pharmacological or psychoactive properties.PUBLIC HEARINGIn accordance with Section 481.034(g), a public hearing to receive comments on the proposal will be scheduled after publication in the Texas Register. The meeting date will be posted on the Schedules of Controlled Substances website (https://dshs.texas.gov/drugs/controlled-substances.aspx). Please contact Karen Tannert at (512) 231-5747 or karen.tannert@dshs.texas.gov, if you have questions.

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