Texas Register September 20, 2024 Volume: 49 Number: 38

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Appointments Re:
2 Texas Board of Nursing
- - 2.0.1 Proposed Rules Re:
    - 2.0.1.1 Amending 22 TAC §211.7, to include a new category of orders the Executive Director may accept on the Board’s behalf.
    - 2.0.1.2 Amending 22 TAC §213.33, to clarify the Board’s remedial education requirements in disciplinary orders and classification of non-compliance as substantive violations, and proposed sanctions, including the denial of initial licensure or licensure renewal and the inclusion of a new aggravating factor related to evidence of fraud, misrepresentation, or falsity that will affect the Board’s analysis when determining the appropriate sanction level that will apply when undertaking a matrix analysis for certain violations.
3 Texas Optometry Board
- - 3.0.1 Proposed Rules Re:
    - 3.0.1.1 Amending 22 TAC §§275.1 – 275.3, to update the rule such that all licenses expire on a biennial basis, clarify the continuing education requirements for licensees, and provide non-substantive grammatical changes to ensure consistency.
4 Texas State Board of Pharmacy
- - 4.0.1 Proposed Rules Re:
5 Texas Department of Insurance
- - 5.0.1 Proposed Rules Re:
  - 5.0.2 In Addition Re:
    - 5.0.2.1 Company Licensing
6 Department of State Health Services
- - 6.0.1 Transferred Rules Re:
    - 6.0.1.1 Transferring the DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 405, Patient Care–Mental Health Services, Subchapter K, Deaths of Individuals Served by Community Mental Health Centers that are related to these transferred functions to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 301, Local Authority Responsibilities, Subchapter H, Deaths of Individuals Served by Community Mental Health Centers.
7 Texas Health and Human Services Commission
- - 7.0.1 Transferred Rules Re:
  - 7.0.2 Proposed Rule Reviews Re:
    - 7.0.2.1 Reviewing Title 26, Part 1, to consider for readoption, revision, or repeal of the chapter concerning the Pediatric Teleconnectivity Resource Program for Rural Texas.
8 Department of Aging and Disability
- - 8.0.1 Transferred Rules Re:
    - 8.0.1.1 Transferring the former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 46, Contracting To Provide Assisted Living And Residential Care Services are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 276, Contracting To Provide Assisted Living And Residential Care Services.
    - 8.0.1.2 Transferring the former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 58, Contracting to Provide Special Services to Persons with Disabilities are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 282, Contracting to Provide Special Services to Persons with Disabilities.

The Governor

Appointments Re:

Appointed to the Texas Medical Board District Three Review Committee for a term to expire January 15, 2026, Surendra K. Varma, M.D.

Appointed to the Pediatric Acute-Onset Neuropsychiatric Syndrome Advisory Council for a term to expire August 31, 2025, Summer B. Gainey, Ph.D.

Appointed to the Family Practice Residency Advisory Committee for a term to expire August 29, 2027, Kendall L. Baker, D.D.

Texas Board of Nursing

Proposed Rules Re:

Amending 22 TAC §211.7, to include a new category of orders the Executive Director may accept on the Board’s behalf.

CHAPTER 211. GENERAL PROVISIONS
22 TAC §211.7

OVERVIEW

The Texas Board of Nursing (Board) proposes amendments to §211.7, relating to Executive Director. The amendments are being proposed under the authority of the Occupations Code §§301.151 and 301.101.

BACKGROUND AND PURPOSE

The Board has established an agreed order to inactivate a nurse’s license if it is found that their education is not substantially equivalent to a Texas approved nursing program’s requirements. Traditionally, such orders have been ratified during a regular Board Meeting or a meeting of the Board’s Eligibility and Disciplinary Committee. However, certain agreed orders are currently accepted on behalf of the Board by the Executive Director. The proposed amendment aims to include inactivation orders, based on educational deficiencies, among those that the Executive Director can accept. This delegation of authority is intended to reduce the time between a nurse’s agreement to inactivate their license and their removal from practice. The Executive Director will provide summaries of these actions at regular Board meetings. Additionally, the amendments clarify the Executive Director’s authority to accept orders for nurses facing temporary suspension under the Occupations Code §§301.455 & 301.4551. These changes aim to improve regulatory efficiency by processing monitoring or suspension orders signed by Respondents without waiting for a temporary suspension hearing or other Board meeting.

SECTION-BY-SECTION SUMMARY

The proposal includes the addition of §211.7(f)(4) to the categories of orders the Executive Director is authorized to accept on the Board’s behalf. The Executive Director must report summaries of these orders to the Board during its regular meetings. Additionally, the proposal eliminates language from §211.7(i) that previously stated the Executive Director could only enter an order for a nurse following a temporary suspension hearing. The revised language broadens this authority, allowing the Executive Director to enter an order when a licensee is subject to temporary suspension or after the licensee has already been temporarily suspended.

Amending 22 TAC §213.33, to clarify the Board’s remedial education requirements in disciplinary orders and classification of non-compliance as substantive violations, and proposed sanctions, including the denial of initial licensure or licensure renewal and the inclusion of a new aggravating factor related to evidence of fraud, misrepresentation, or falsity that will affect the Board’s analysis when determining the appropriate sanction level that will apply when undertaking a matrix analysis for certain violations.

CHAPTER 213. PRACTICE AND PROCEDURE
22 TAC §213.33

OVERVIEW

The Texas Board of Nursing (Board) proposes amendments to §213.33, relating to Factors Considered for Imposition of Penalties/Sanctions. The amendments are being proposed under the authority of the Occupations Code §301.151.

BACKGROUND AND PURPOSE

On January 25, 2023, the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG) and law enforcement partners executed a coordinated, multi-state operation to apprehend individuals involved in selling fraudulent nursing degree diplomas and transcripts. The scheme allegedly involved the sale of fake nursing diplomas and transcripts from accredited Florida-based nursing schools to Registered Nurse (RN) and Licensed Practical/Vocational Nurse (LPN/VN) candidates. Those who obtained these fraudulent credentials used them to qualify for the national nursing board exam. Upon passing the exam, these individuals were eligible to obtain licensure in various states, including Texas, to practice as RNs or LVNs.

The Board has begun disciplinary actions to revoke or deny the renewal of licenses and to deny initial licenses to individuals implicated in the scheme. According to Tex. Occ. Code §301.451, it is illegal to practice nursing with a diploma, license, or record obtained unlawfully or fraudulently. Tex. Occ. Code §301.452(b)(1) authorizes the Board to take action on violations of Chapter 301 or any related rule, regulation, or order. The purpose of the proposed amendments is to bridge the gap between a violation of Tex. Occ. Code §301.451 and the concurrent violation of Tex. Occ. Code §301.452(b)(1).

The proposed amendments aim to clarify the Board’s stance on these violations, informing licensees and the public about the likely sanctions for such violations based on the Disciplinary Matrix’s Tier and Sanction Level analysis. The amendments also specify disciplinary actions for applicants who falsely certify that they meet Texas’s licensure qualifications. A number of applicants for renewal and licensure have inaccurately claimed to meet educational requirements, leading to the licensure of nurses who have not completed the necessary clinical or didactic education, posing a significant public health risk. The amendments seek to ensure applicants understand the Board’s position on this behavior and to maintain consistency in applying the Board’s disciplinary matrix.

Additionally, the proposed amendments distinguish between technical and substantive requirements of a Board order. Current language misclassifies remedial education, typically required in Board disciplinary orders, as technical, non-remedial requirements. The amendments remove this language to align with the Board’s current view of these violations.

SECTION-BY-SECTION SUMMARY

The proposal introduces several changes to the Board’s Disciplinary Matrix, found in §213.33(b), particularly concerning §301.452(b)(1). The amendments clarify the Board’s stance on non-compliance with remedial education requirements in disciplinary orders, removing language that previously classified these requirements as technical and non-remedial. The Board now views non-compliance with remedial education requirements as substantive violations.

The proposed amendments in the Third Tier of §301.452(b)(1) articulate two proposed violations that the Board views as Third Tier offenses. The first offense involves practicing nursing with unlawfully or fraudulently obtained credentials, or credentials issued under false representation. The second offense pertains to inaccurately certifying on initial or renewal licensure applications that an applicant meets Texas’s legal and regulatory qualifications. Proposed changes to Sanction Level I in the Third Tier include the denial of initial licensure or licensure renewal, aligning with Board precedent in similar cases. These proposed additional sanctions support the Board’s authority under §301.453, which includes the denial of applications for licensure, renewal, or temporary permits. Additionally, a new aggravating factor related to evidence of fraud, misrepresentation, or falsity will guide the Board in determining the appropriate sanction level that will apply when undertaking a matrix analysis for the above stated violations.

Texas Optometry Board

Proposed Rules Re:

Amending 22 TAC §§275.1 – 275.3, to update the rule such that all licenses expire on a biennial basis, clarify the continuing education requirements for licensees, and provide non-substantive grammatical changes to ensure consistency.

CHAPTER 275. CONTINUING EDUCATION
22 TAC §§275.1 – 275.3

OVERVIEW

The Texas Optometry Board proposes amendments to 22 TAC Part 14 Chapter 275 Continuing Education.

BACKGROUND AND PURPOSE

The rules in the Chapter 275 were reviewed as a result of the Board’s general rule review under Texas Government Code §2001.039. Notice of the review was published in the March 1, 2024, issue of the Texas Register (49 TexReg 1288). No comments were received regarding the Board’s notice of review. The Board has determined that there continues to be a need for the rules in Chapter 275.

The Board determined that changes to the following rules as currently in effect are necessary to further clarify the statute: §275.1 General Requirements; §275.2 Required Education; and §275.3 Continuing Education Tracking System.

SECTION-BY-SECTION SUMMARY

The majority of the changes made to Chapter 275 update the rule to reflect the requirements now that all licenses expire on a biennial basis. Additionally, the amendments clarify the continuing education requirements for licensees who are trying to activate an expired license and for new licensees when first licensed. The rule eliminates the continuing education requirement for the one-time controlled prescribing course and instead the course has been added to Chapter 271 as prerequisite for receiving a therapeutic license. Finally, the amendments provide non-substantive capitalization and grammatical changes to ensure consistency across the Board’s rules. No changes are being made to the total number of continuing education courses required for renewal of a license.

Texas State Board of Pharmacy

Proposed Rules Re:

Amending 22 TAC §291.9, to clarify that U.S. Mail is a type of common carrier.

CHAPTER 291. PHARMACIES
SUBCHAPTER A. ALL CLASSES OF PHARMACIES
22 TAC §291.9

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §291.9, concerning Prescription Pick Up Locations. The amendments, if adopted, clarify that U.S. Mail is a type of common carrier.

BACKGROUND AND PURPOSE

For each year of the first five years the proposed amendments will be in effect, Dr. Carroll has determined the following:

(1) The proposed amendments do not create or eliminate a government program;

(2) Implementation of the proposed amendments does not require the creation of new employee positions or the elimination of existing employee positions;

(3) Implementation of the proposed amendments does not require an increase or decrease in the future legislative appropriations to the agency;

(4) The proposed amendments do not require an increase or decrease in fees paid to the agency;

(5) The proposed amendments do not create a new regulation;

(6) The proposed amendments do not limit or expand an existing regulation;

(7) The proposed amendments do not increase or decrease the number of individuals subject to the rule’s applicability; and

(8) The proposed amendments do not positively or adversely affect this state’s economy.

Amending 22 TAC §291.33, to clarify recordkeeping requirements for certain donated prescription drugs.

CHAPTER 291. PHARMACIES
SUBCHAPTER B. COMMUNITY PHARMACY (CLASS A)
22 TAC §291.33

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §291.33, concerning Operational Standards. The amendments, if adopted, clarify a recordkeeping requirement for a donated prescription drug dispensed under Chapter 442, Health and Safety Code, in accordance with House Bill 4332.

BACKGROUND AND PURPOSE

For each year of the first five years the proposed amendments will be in effect, Dr. Carroll has determined the following:

(1) The proposed amendments do not create or eliminate a government program;

(2) Implementation of the proposed amendments does not require the creation of new employee positions or the elimination of existing employee positions;

(3) Implementation of the proposed amendments does not require an increase or decrease in the future legislative appropriations to the agency;

(4) The proposed amendments do not require an increase or decrease in fees paid to the agency;

(5) The proposed amendments do not create a new regulation;

(6) The proposed amendments do limit an existing regulation in order to be consistent with state law;

(7) The proposed amendments do not increase or decrease the number of individuals subject to the rule’s applicability; and

(8) The proposed amendments do not positively or adversely affect this state’s economy.

Amending 22 TAC §291.133, to update the processes and requirements related to personnel, environment, compounding process, cleaning and disinfecting, beyond-use dating, cleansing and garbing, environmental testing, sterility testing, recall procedure, and recordkeeping requirements for pharmacies compounding sterile preparations.

CHAPTER 291. PHARMACIES
SUBCHAPTER G. SERVICES PROVIDED BY PHARMACIES
22 TAC §291.133

The Texas State Board of Pharmacy proposes amendments to §291.133, concerning Pharmacies Compounding Sterile Preparations. The amendments, if adopted, update the personnel, environment, compounding process, cleaning and disinfecting, beyond-use dating, cleansing and garbing, environmental testing, sterility testing, recall procedure, and recordkeeping requirements for pharmacies compounding sterile preparations.

Daniel Carroll, Pharm.D., Executive Director/Secretary, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Dr. Carroll has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be to ensure the safety and efficacy of compounded sterile preparations for patients, improve the health, safety, and welfare of patients by ensuring that Class A, Class B, Class C, and Class E pharmacies engaged in sterile compounding operate in a safe and sanitary environment, and provide clearer regulatory language that is appropriately informed by the recently updated guidance in the United States Pharmacopeia-National Formulary. For each year of the first five-year period the rule will be in effect, the probable economic cost to persons required to comply with the amendments is estimated to be $0-$1,970 per employee, $0-$300 in fixed costs, and $0-$2,309.69 in variable costs based on batch size or number of preparations. Additionally, dependent on a pharmacy’s current operations and equipment, a pharmacy would potentially incur one-time expenses of $0-$5,000 for cleanroom modifications, $0-$6,000 for a pharmaceutical grade oven or autoclave, and $0-$500 for temperature logs and monitors.

Texas Department of Insurance

Proposed Rules Re:

Amending 28 TAC §11.506, to clarify that network facilities cannot balance bill enrollees unless they affirmatively choose the provider and receive a cost estimate; update contract requirements related to out-of-network services; expand and update prescription drug coverage requirements; and make grammatical changes to ensure consistency across different codes.

CHAPTER 11. HEALTH MAINTENANCE ORGANIZATIONS
SUBCHAPTER F. EVIDENCE OF COVERAGE
28 TAC §11.506

OVERVIEW

The Texas Department of Insurance (TDI) proposes to amend 28 TAC §§11.506, 11.901, 11.902, 11.1611, and 11.1612, concerning health maintenance organizations. Amendments to §11.506 implement Senate Bill 1264, 86th Legislature, 2019. In addition, this proposal changes wording in rule text for consistency with HB 446, which updates terminology used in statute to refer to intellectual disability. Amendments to §11.901 and §11.902 implement House Bill 711, 88th Legislature, 2023, and House Bill 3078, 85th Legislature, 2017. Amendments to §11.1611 implement House Bill 1647, 88th Legislature, 2023; Senate Bill 1003, 88th Legislature, 2023; Senate Bill 1264, 86th Legislature, 2019; and Senate Bill 2476, 88th Legislature, 2023; the amendments also address the court order in Texas Ass’n of Health Plans v. Texas Dept. of Insurance, Travis County District Court No. D-1-GN-18-003846 (October 15, 2020) (TAHP Order), which invalidated §11.1611(d). Amendments to §11.1612 implement Senate Bill 1003, 88th Legislature, 2023.

BACKGROUND AND PURPOSE

This proposal implements the following legislation:

HB 711, which prohibits anticompetitive contract provisions;
HB 1647, which provides protections for certain clinician-administered drugs;
HB 3078, which transfers regulation of podiatrists to the Texas Department of Licensing and Regulation;
SB 1003, which expands facility-based provider types that must be listed in provider directories;
SB 1264, which creates new payment standards and balance billing protections for care provided by non-network facility-based providers in a network facility, diagnostic imaging and laboratory services in connection with care from a network provider, and emergency care; and
SB 2476, which creates new payment standards and balance billing protections for emergency medical services. The proposed amendments remove payment rules that were invalidated by court order and update provisions for out-of-network care consistent with SB 1264 and SB 2476.

In addition, the proposal makes nonsubstantive changes to (1) add or amend Insurance Code citations for accessibility and consistency with agency rule drafting style preferences; and (2) correct and revise punctuation, capitalization, and grammar to reflect current agency drafting style and plain language preferences.

SECTION-BY-SECTION SUMMARY

Section 11.506. Mandatory Contractual Provisions: Group, Individual, and Conversion Agreement and Group Certificate The proposed amendments add the title of §11.1611 to subsection (b)(2)(B) to conform to agency style and add the phrase “must be included” to subsection (b)(3) to clarify the meaning and complete the sentence.

Amendments to subsection (b)(2)(C) implement SB 1264 by updating the disclosure related to facility-based physicians and other health care practitioners. The disclosure is updated to clarify that in a network facility, an enrollee cannot be balance billed unless they affirmatively choose the physician or provider and receive a cost estimate.

Amendments to subsection (b)(3)(B)(iii) update rule citations to reflect amendments made to rules in Chapter 26.

An amendment to subsection (b)(13) adds the word “terminate” to the incontestability provision to align with terminology used in parts of Insurance Code Chapters 843 and 1271.

Amendments to subsection (b)(14) update contract requirements related to out-of-network services to remove the reference to reasonably requested documentation, consistent with changes to §11.1611. This will ensure that referral requests are promptly approved. This change does not prevent HMOs from requesting reasonable documentation; rather, it clarifies that the five-day time limit on referrals starts from the time the referral is requested rather than from the time documentation is received.

An amendment to subsection (b)(17) replaces the term “mental retardation” with “intellectual disability” to align with changes made throughout the Insurance Code by HB 446.

An amendment to subsection (b)(19) corrects an error in a citation to the Insurance Code.

Amendments to subsection (b)(24) expand and update the prescription drug coverage requirements by removing the references to formularies and requiring compliance with all of Insurance Code Chapter 1369 rather than solely Subchapter B of that chapter. These changes are needed because substantive coverage requirements exist throughout Chapter 1369, most of which are not contingent on formulary use.

Amendments remove parentheses from references to the titles of statutory citations and revise other punctuation to reflect this change; add apostrophes to denote possession, where appropriate; replace “percent” with “%”; correct verb tenses; update a title to Insurance Code Chapter 1369, Subchapter B; remove the title to a redundant Insurance Code citation; and otherwise align rule text with current agency drafting style and plain language preferences.

Amending 28 TAC §11.901, §11.902, to remove duplicative and outdated sections.

CHAPTER 11. HEALTH MAINTENANCE ORGANIZATIONS
SUBCHAPTER J. PHYSICIAN AND PROVIDER CONTRACTS AND ARRANGEMENTS
28 TAC §11.901, §11.902

OVERVIEW

BACKGROUND AND PURPOSE

This proposal implements the following legislation:

HB 711, which prohibits anticompetitive contract provisions;
HB 1647, which provides protections for certain clinician-administered drugs;
HB 3078, which transfers regulation of podiatrists to the Texas Department of Licensing and Regulation;
SB 1003, which expands facility-based provider types that must be listed in provider directories;
SB 1264, which creates new payment standards and balance billing protections for care provided by non-network facility-based providers in a network facility, diagnostic imaging and laboratory services in connection with care from a network provider, and emergency care; and
SB 2476, which creates new payment standards and balance billing protections for emergency medical services. The proposed amendments remove payment rules that were invalidated by court order and update provisions for out-of-network care consistent with SB 1264 and SB 2476.

SECTION-BY-SECTION SUMMARY

Section 11.901. Required and Prohibited Provisions. The proposed amendments to §11.901(a) remove the incorrect use of “of this title” in reference to an Insurance Code citation.

The amendments also delete a duplicative citation to an Insurance Code title in subsection (b)(3) and update the mailing address for the Managed Care Quality Assurance Office in subsection (b)(4). An amendment to subsection (b)(11) corrects the title of Insurance Code §1661.005 to read “Refund of Overpayment” instead of “Refunds of Overpayments.”

An amendment to subsection (c)(1)(A) adds a reference to ICD-11-CM.

Amendments to subsection (e) replace “the effective date of this subsection” with “August 1, 2017,” to insert the effective date of the last adoption of amendments to the section.

New subsection (g) is added to implement HB 711, including the prohibitions in Insurance Code §1458.101 on contractual anti-steering, anti-tiering, most favored nation, and gag clauses.

Amendments also remove parentheses from statutory citations for uniformity in formatting, add an apostrophe to denote possession, and revise unnecessary use of the words “hereby” and “hereafter.”

Section 11.902. Prohibited Actions. A proposed amendment designates subsection (a) to contain existing paragraphs (1) – (7), to allow for the addition of a subsection (b) to the section. An amendment to paragraph (4) replaces the outdated reference to the “Texas State Board of Podiatric Medical Examiners” with the “Texas Department of Licensing and Regulation,” reflecting the enactment of HB 3078 in 2017.

Proposed amendments implement HB 711 by adding new subsection (b). The new subsection prohibits an HMO from using steering or a tiered network to encourage an enrollee to obtain a health care service from a particular provider, unless it is done for the primary benefit of the enrollee or contract holder in compliance with the requirements of the Insurance Code, including Insurance Code §1458.101(i). Proposed new subsection (b) also defines “steering” and “tiered network” according to HB 711, clarifies that fiduciary duty violations will be determined by TDI on the basis of an assessment of the HMO’s conduct, and provides non-exhaustive examples of conduct that would violate the fiduciary duty under Insurance Code §1458.101(i).

Amendments remove parentheses from the titles of statutory citations to reflect current agency drafting style.

Amending 28 TAC §11.1611, §11.1612, to update requirements for out-of-network claims, remove duplicative or unnecessary requirements, and make nonsubstantive formatting and grammatical changes.

CHAPTER 11. HEALTH MAINTENANCE ORGANIZATIONS
SUBCHAPTER Q. OTHER REQUIREMENTS
28 TAC §11.1611, §11.1612

OVERVIEW

BACKGROUND AND PURPOSE

This proposal implements the following legislation:

HB 711, which prohibits anticompetitive contract provisions;
HB 1647, which provides protections for certain clinician-administered drugs;
HB 3078, which transfers regulation of podiatrists to the Texas Department of Licensing and Regulation;
SB 1003, which expands facility-based provider types that must be listed in provider directories;
SB 1264, which creates new payment standards and balance billing protections for care provided by non-network facility-based providers in a network facility, diagnostic imaging and laboratory services in connection with care from a network provider, and emergency care; and
SB 2476, which creates new payment standards and balance billing protections for emergency medical services. The proposed amendments remove payment rules that were invalidated by court order and update provisions for out-of-network care consistent with SB 1264 and SB 2476.

SECTION-BY-SECTION SUMMARY

Section 11.1611. Out-of-Network Claims; Non-Network Physicians and Providers. To implement SB 1264 and SB 2476, proposed amendments update requirements for out-of-network claims. An amendment replaces existing subsection (a) with a new subsection (a) containing text with references to out-of-network payment standards in Insurance Code Chapter 1271.

An amendment also replaces existing subsection (b) with a new subsection (b) that provides requirements for an HMO to facilitate an enrollee’s access to care in circumstances when medically necessary covered services are not reasonably available through a network physician or provider. New subsection (b)(1) requires an HMO to facilitate the enrollee’s access to care and follow access plan procedures. Subsection (b)(2) requires an HMO to inform the enrollee of their rights to receive out-of-network care under the in-network benefit level and to advise the consumer to contact the HMO if they receive a balance bill. Subsection (b)(3) addresses additional disclosure requirements for an enrollee with an out-of-network benefit under a point-of-service plan.

Proposed amendments to subsection (c) clarify that an HMO must approve a network gap exception and facilitate access to care within the time appropriate to the circumstances, not to exceed five business days. The amendments to subsection (c)(1) specify that an HMO must allow an enrollee to use a non-network physician or provider that has the necessary expertise, is reasonably available, and that the enrollee can use without being liable for additional cost-sharing.

Proposed amendments strike existing subsection (d), which was invalidated by court order in the 2020 TAHP Order, and redesignate subsequent subsections. The subsections that follow it are redesignated to reflect the removal of existing subsection (d).

Redesignated subsection (d) is amended to remove reference to subsections (a) – (c) and to revise a reference to the Consumer Protection Section to instead reference the TDI toll-free consumer information help line.

Proposed amendments to redesignated subsection (e) remove existing paragraph (1), relating to the methodology for usual and customary charges, because HMOs are required to make payments based on the usual and customary rate, rather than the usual and customary charge. Subsequent paragraphs under subsection (e) are renumbered as appropriate to reflect the change.

An amendment adds new subsection (f) to implement HB 1647 by referencing coverage requirements for clinician-administered drugs in Insurance Code Chapter 1369, Subchapter W, as added by HB 1647. If a clinician-administered drug is provided by a non-network provider and eligible to be covered under the plan’s in-network benefit, the HMO must issue payment consistent with subsection (d).

Amendments update grammar and punctuation throughout to reflect current agency drafting style and plain language preferences.

Section 11.1612. Mandatory Disclosure Requirements. Proposed amendments implement SB 1003 and SB 1264, remove duplicative or unnecessary requirements, and make nonsubstantive formatting and grammatical changes to improve readability.

Amendments to subsection (a) broaden the provisions to apply to all physician and provider directories, rather than only online directories. Some requirements that were previously required under subsection (h) are moved into subsection (a). Paragraph (1) is expanded to require a directory to indicate whether physicians and providers are accepting new patients, which was previously required under subsection (h)(2). Paragraph (2) is added to require a directory to explain limitations of accessibility and referrals to specialists, including those imposed by a limited provider network, which was previously required under subsection (h)(5). Paragraph (3) is added to require the directory to be dated and provided in at least 10-point type, which was previously required in subsection (h)(9) and (10). Subsequent paragraphs are renumbered as appropriate to reflect the addition of new paragraphs. Paragraph (8) is added to require the directory to include an email address and toll-free telephone number through which enrollees may notify an HMO of inaccurate information in the listing, which was previously required in subsection (h)(3).

An amendment to subsection (b) revises the wording in the last sentence for clarity.

Amendments to subsection (c) replace the word “font” with “type” and replace Figure: 28 TAC §11.1612(c). New Figure: 28 TAC §11.1612(c) reflects updated consumer protections enacted under SB 1264 and SB 2476 and uses plain language to improve consumer understanding of the notice.

Amendments in subsection (d) revise text to provide plainer language.

Amendments to subsection (e) modify formatting and punctuation; clarify that information may be provided for each service area or county; and remove existing paragraph (2), which was duplicative of requirements in existing paragraph (1). Because of the removal of paragraph (2), the text of existing paragraph (1) is combined with the text following subsection (e), and the subparagraphs under existing paragraph (1) are redesignated as paragraphs.

Amendments to subsection (f) provide plainer language by removing or revising wording that is repetitive or does not align with agency style.

Subsection (g) is amended to add a requirement that an HMO make restitution to an enrollee for any additional amount paid by the enrollee as a result of inaccurate information provided by the HMO. Also, existing paragraph (4) is removed, because it is repetitive of paragraph (1).

Subsection (h) is amended to reference, rather than restate, statutory requirements; exclude dental and vision networks, consistent with statute; and remove provisions that apply to all networks and which are added to subsection (a). Paragraph (1) is deleted, because consumers are now protected from balance billing at all network facilities. Paragraph (2) is deleted, because the provision in it is added to subsection (a)(1). Paragraph (3) is also deleted, because the provision in it is added to subsection (a)(8). To reflect the deletion of paragraphs (1) – (3), paragraph (4) is redesignated as paragraph (1). In addition, it is amended to add a reference to providers and a citation to Insurance Code §1451.504. Paragraph (5) is deleted, because the provision in it is added to subsection (a)(2). Paragraph (6) is also deleted, because it is unnecessary to restate the requirements of Insurance Code §1456.003(c). To reflect the renumbering of paragraph (4) and the deletion of paragraphs (5) – (6), paragraph (7) is renumbered as paragraph (2). In addition, it is amended to cite and align with Insurance Code Chapter 1456, use language more consistent with the statute, and replace the term “insurer” with “HMO.” Paragraphs (8) and (9) are deleted and moved to subsection (a)(3). Paragraphs (10) and (11), are deleted because they simply unnecessarily restate the requirements of Insurance Code §1451.504(c) and (d).

Amendments to subsection (i) clarify and streamline the required disclosure. This includes removing paragraph (2) and the paragraph (1) designation, and incorporating the remaining text of paragraph (1) into the text that follows subsection (i). A reference to subsection (e)(2) is also revised, to reflect the removal of existing paragraph (2) from subsection (e).

Amendments to subsection (j) clarify that the disclosure of a substantial decrease in availability applies to both physicians and providers, but that the decreases in numbers of physicians and other providers must be assessed separately. The requirement for HMOs to notify TDI by email of contract terminations that do not impact network compliance is removed, with amendments to subsection (j)(2)(B) and removal of subjection (j)(4)(C).

In Addition Re:

Company Licensing

Application for incorporation in the state of Texas for MedCare Partners Health Plan of Texas, LLC, a domestic health maintenance organization (HMO).

Department of State Health Services

Transferred Rules Re:

Transferring the DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 405, Patient Care–Mental Health Services, Subchapter K, Deaths of Individuals Served by Community Mental Health Centers that are related to these transferred functions to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 301, Local Authority Responsibilities, Subchapter H, Deaths of Individuals Served by Community Mental Health Centers.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, certain functions previously performed by the Department of State Health Services (DSHS), including client services, certain regulatory functions, and the operation of state hospitals, transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. The DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 405, Patient Care–Mental Health Services, Subchapter K, Deaths of Individuals Served by Community Mental Health Centers that are related to these transferred functions, are being transferred to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 301, Local Authority Responsibilities, Subchapter H, Deaths of Individuals Served by Community Mental Health Centers.

Texas Health and Human Services Commission

Transferred Rules Re:

Transferring the DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 405, Patient Care–Mental Health Services, Subchapter K, Deaths of Individuals Served by Community Mental Health Centers that are related to these transferred functions, are being transferred to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 301, Local Authority Responsibilities, Subchapter H, Deaths of Individuals Served by Community Mental Health Centers.

OVERVIEW

Transferring the former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 46, Contracting To Provide Assisted Living And Residential Care Services are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 276, Contracting To Provide Assisted Living And Residential Care Services.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, some agencies were abolished and their functions transferred to the Texas Health and Human Services Commission (HHSC). Texas Government Code, §531.0202(b), specified the Department of Aging and Disability Services (DADS) be abolished September 1, 2017, after all its functions were transferred to HHSC in accordance with Texas Government Code, §531.0201 and §531.02011. The former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 46, Contracting To Provide Assisted Living And Residential Care Services are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 276, Contracting To Provide Assisted Living And Residential Care Services.

Transferring the former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 58, Contracting to Provide Special Services to Persons with Disabilities are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 282, Contracting to Provide Special Services to Persons with Disabilities.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, some agencies were abolished and their functions transferred to the Texas Health and Human Services Commission (HHSC). Texas Government Code, §531.0202(b), specified the Department of Aging and Disability Services (DADS) be abolished September 1, 2017, after all its functions were transferred to HHSC in accordance with Texas Government Code, §531.0201 and §531.02011. The former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 58, Contracting to Provide Special Services to Persons with Disabilities are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 282, Contracting to Provide Special Services to Persons with Disabilities.

Proposed Rule Reviews Re:

Reviewing Title 26, Part 1, to consider for readoption, revision, or repeal of the chapter concerning the Pediatric Teleconnectivity Resource Program for Rural Texas.

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

Chapter 280, Pediatric Teleconnectivity Resource Program for Rural Texas

Department of Aging and Disability

Transferred Rules Re:

Transferring the former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 46, Contracting To Provide Assisted Living And Residential Care Services are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 276, Contracting To Provide Assisted Living And Residential Care Services.

OVERVIEW

Transferring the former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 58, Contracting to Provide Special Services to Persons with Disabilities are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 282, Contracting to Provide Special Services to Persons with Disabilities.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, some agencies were abolished and their functions transferred to the Texas Health and Human Services Commission (HHSC). Texas Government Code, §531.0202(b), specified the Department of Aging and Disability Services (DADS) be abolished September 1, 2017, after all its functions were transferred to HHSC in accordance with Texas Government Code, §531.0201 and §531.02011. The former DADS rules in Texas Administrative Code, Title 40, Part 1, Chapter 58, Contracting to Provide Special Services to Persons with Disabilities are being transferred to Texas Administrative Code, Title 26, Part 1, Chapter 282, Contracting to Provide Special Services to Persons with Disabilities.