Texas Register September 24, 2021 Volume: 46 Number: 39

Texas Register Table of Contents

1 Governor
- - 1.0.1 Appointments Re:
2 Health and Human Services Commission
3 Department of Aging and Disability Services
- - 3.0.1 Emergency Rules Re:
    - 3.0.1.1 New 40 TAC §9.597, describing requirements for Texas Home Living providers in order to reduce the risk of COVID-19 transmission.
4 Texas State Board of Pharmacy
- - 4.0.1 Proposed Rules Re:
5 Department of State Health Services
- - 5.0.1 Proposed Rules Re:
    - 5.0.1.1 Repealing 25 TAC §157.132 to update requirements related to emergency medical services trauma systems.
    - 5.0.1.2 New 25 TAC §157.122 and §157.133 to replace the old rules relating to emergency medical services trauma systems.
6 Texas Council for Developmental Disabilities
7 Texas State Board of Examiners of Professional Counselors
- - 7.0.1 Withdrawn Rules Re:
    - 7.0.1.1 Withdrawing 22 TAC §681.2, which related to art therapy.
    - 7.0.1.2 Withdrawing 22 TAC §681.93, which related to application and licensing requirements.
8 State Board of Dental Examiners
- - 8.0.1 Adopted Rules Re:

Governor

Appointments Re:

Governor appoints Ruben A. Martinez to the Advisory Council on Emergency Medical Services.

Appointments for September 8, 2021

Appointed to the Advisory Council on Emergency Medical Services for a term to expire January 1, 2022:

Ruben A. Martinez, Jr. of Concepcion, Texas (replacing Sheila J. Faske of Rose City, who resigned).

Governor reappoints thirteen individuals to the Pediatric Acute-Onset Neuropsychiatric Syndrome Advisory Council.

Appointments for September 9, 2021

Reappointed to the Pediatric Acute-Onset Neuropsychiatric Syndrome Advisory Council, for a term to expire August 31, 2023:

Joel B. “Brandon” Brock, D.N.P. of Sunnyvale, Texas
Kara S. Chasteen of Bertram, Texas
Anne M. Esquivel, Ph.D. of New Braunfels, Texas
Daniel V. “Dan” Freeland, D.O. of Lakeway, Texas
Lisa M. Formby of Hereford, Texas
Sarah Rosen Garrett of Spicewood, Texas
Suzanne K. Gazda, M.D. of San Antonio, Texas
Lisa C. Hardy of Argyle, Texas
Qazi U. Javed, M.D. of Cedar Park, Texas
Paula J. Kruppstadt, M.D. Conroe, Texas
Sharon G. Lemons of Saginaw, Texas
Amy L. Offutt, M.D. of Meadowlakes, Texas
Nathan A. Pullen of Austin, Texas

Governor appoints Lourdes M. Cuellar to the Council on Cardiovascular Disease and Stroke.

Appointments for September 13, 2021

Appointed to the Council on Cardiovascular Disease and Stroke, for a term to expire February 1, 2027:

Lourdes M. Cuellar of Houston, Texas (replacing Shilpa Shamapant of Austin, who resigned).

Governor appoints fourteen individuals to the Texas Health Services Authority Board of Directors.

Appointments for September 15, 2021

Appointed to the Texas Health Services Authority Board of Directors for a term to expire June 15, 2023:

Paula E. Anthony-McMann, Ph.D. of Tyler, Texas (Dr. Anthony-McMann is being reappointed).
Victoria Ai Linh Bryant, Pharm.D. of Houston, Texas (Dr. Bryant is being reappointed).
Shannon S. Calhoun of Goliad, Texas (Ms. Calhoun is being reappointed).
Salil V. Deshpande, M.D. of Houston, Texas (Dr. Deshpande is being reappointed).
Emily F. Hartmann of El Paso, Texas (Ms. Hartmann is being reappointed).
Kenneth S. James of Volente, Texas (Mr. James is being reappointed).
Jerome P. Lisk, M.D. of Tyler, Texas (Dr. Lisk is being reappointed).
Leticia C. Rodriguez of Monahans, Texas (Ms. Rodriguez is being reappointed).
Jonathan J. Sandstrom Hill of Lakeway, Texas (Mr. Sandstrom Hill is being reappointed).
Siobhan Shahan of Lubbock, Texas (Ms. Shahan is being reappointed).
Cynthia A. “Cindy” Stinson, Ph.D. of Lumberton, Texas (replacing Lourdes M. Cuellar of Houston, whose term expired).
Carlos J. Vital, M.D. of Friendswood, Texas (Dr. Vital is being reappointed).
Calvin J. Green of Elgin, Texas (Mr. Green is being reappointed).
Jeffrey W. “Jeff’ Hoogheem of Killeen, Texas (Mr. Hoogheem is being reappointed).

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §500.1, describing updated requirements for the operation of certain off-site inpatient facilities.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER A. HOSPITALS
26 TAC §500.1

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Texas Administrative Code, Chapter 500, COVID-19 Emergency Health Care Facility Licensing, new §500.1, concerning an emergency rule to allow hospitals to treat and house patients more effectively in response to COVID-19.

HHSC is adopting an emergency rule to allow a currently licensed hospital to operate an off-site inpatient facility without obtaining a new license at: (1) another type of facility currently licensed or licensed within the past 36 months or a facility pending licensure that has passed its final architectural review inspection, such as an ambulatory surgical center, an assisted living facility, a freestanding emergency medical care facility, an inpatient hospice unit, a mental hospital, or a nursing facility; (2) an outpatient facility operated by the hospital; (3) a formerly licensed hospital that closed within the past 36 months or a hospital pending licensure that has passed its final architectural review inspection; (4) a hospital exempt from licensure; and (5) a mobile, transportable, or relocatable unit.

To allow operation of additional off-site facilities, this emergency rule also allows a waiver of the requirement for off-site facilities to be open or licensed within the past 36 months, at HHSC’s discretion.

This emergency rule also temporarily permits a currently licensed hospital to designate a specific part of its hospital for use as an off-site facility by another hospital, and to allow another currently licensed hospital to apply to use the first hospital’s designated hospital space as an off-site facility for inpatient care.

BACKGROUND AND JUSTIFICATION

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

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

Renewing 26 TAC §556.100 allowing experience gained during the COVID-19 pandemic to count toward the clinical training requirement for nurse aides.

CHAPTER 556. NURSE AIDES
26 TAC §556.100

OVERVIEW

The Health and Human Services Commission is renewing the effectiveness of emergency new §556.100 for a 60-day period. The text of the emergency rule was originally published in the May 28, 2021, issue of the Texas Register (46 Tex Reg 3330).

The Executive Commissioner of Health and Human Services (HHSC) renews on an emergency basis in Title 26, Part 1, Chapter 556 Nurse Aides, new §556.100, concerning an emergency rule in response to COVID-19 describing the process for individuals who have been trained as nurse aides and have been completing nurse aide tasks under a waiver to become certified as nurse aides.

HHSC is renewing this emergency rule to permit individuals with work experience gained at a nursing facility during the pandemic to be counted as classroom and clinical training hours required as part of a Nurse Aide Training and Competency Evaluation Program (NATCEP).

BACKGROUND AND JUSTIFICATION

As authorized by Texas 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 Texas Government Code §2001.034 may be effective for no longer than 120 days and may be renewed for not longer than 60 days.

Proposed Rules Re:

New 1 TAC §§353.1451 – 353.1454, describing the due process procedures an MCO must follow when engaging in recoupment efforts related to fraud or abuse.

CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER Q. PROCESS TO RECOUP CERTAIN OVERPAYMENTS
1 TAC §§353.1451 – 353.1454

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §353.1451, concerning Purpose and Authority; §353.1452, concerning Definitions; §353.1453, concerning Due Process Procedures to Recoup an Overpayment Related to an EVV Visit Transaction that is not Fraud or Abuse and Limitation on Audit Period; and §353.1454, concerning Due Process Procedures to Recoup an Overpayment Because of a Discovery of Fraud or Abuse, in Chapter 353, new Subchapter Q, Process to Recoup Certain Overpayments.

BACKGROUND AND JUSTIFICATION

Senate Bill 1991, 86th Legislature, Regular Session, 2019, amended Texas Government Code by adding new §§531.1131(f) and 531.1135 requiring HHSC to adopt rules describing the due process procedures a managed care organization (MCO) must follow to recoup an overpayment made to a health care provider related to missing electronic visit verification (EVV) information; and requiring that, as part of the process to recoup such an overpayment, an MCO give a provider at least 60 days to correct a deficiency in a claim before the MCO begins any efforts to recoup overpayments.

Texas Government Code, §531.1131(e) requires HHSC to adopt rules describing the due process procedures an MCO must follow when engaging in recoupment efforts related to fraud or abuse.

The purpose of the proposal is to implement Texas Government Code, §§531.1131(e) and (f) and 531.1135.

SECTION-BY-SECTION SUMMARY

Proposed new §353.1451 describes the purpose of new Subchapter Q and explains that Texas Government Code, §531.1131 and §531.1135 provide the statutory basis for the new subchapter.
Proposed new §353.1452 defines the terms used in the subchapter.
Proposed new §353.1453(a) requires an MCO to, in an audit of a provider or financial management services agency (FMSA), limit the review of EVV visit transactions to those that occurred during the 24 months prior to the audit. Subsection (b) of the proposed rule requires that if, based on an audit or investigation, an MCO identifies a deficiency related to an EVV visit transaction that is not fraud or abuse and the MCO decides to recoup an overpayment because of the deficiency, the MCO gives a provider or FMSA written notice of the MCO’s intent to recoup overpayments not later than the 30th day after the date the audit or investigation is completed. Subsection (c) of the proposed rule describes the information that must be in the written notice, including the specific number of days allowed to correct and explain the deficiency before the MCO begins any efforts to collect overpayments, which must be no fewer than 60 days from the notice date; the provider’s or FMSA’s option to seek an informal resolution with the MCO of the intended recoupment; and the MCO’s process to appeal the intended recoupment. Subsection (d) of the proposed rule provides that a corrected deficiency is one that a provider or FMSA makes by performing visit maintenance to correct an EVV visit transaction in accordance with HHSC EVV policy or correcting and resubmitting a claim in accordance with MCO policies and procedures. Subsection (e) of the proposed rule allows an MCO to recoup an overpayment only if a provider or FMSA does not correct the deficiency related to an EVV visit transaction and does not appeal the alleged overpayment or appeals the alleged overpayment and the final decision from the appeal is favorable to the MCO. Subsection (f) of the proposed rule requires an MCO to comply with the proposed new §353.1454 if the MCO determines that a deficiency related to an EVV visit transaction is fraud or abuse.
Proposed new §353.1454(a) requires an MCO to have due process procedures in place if the MCO decides to recoup an overpayment from a provider or FMSA because of a discovery of fraud or abuse, as permitted by §353.505 (relating to Recovery of Funds). Subsection (a) also requires that the due process procedures include a written notice to the provider or FMSA of the MCO’s intent to recoup overpayments and that such notice include a description of the basis for the intended recoupment; the provider’s or FMSA’s option to seek an informal resolution with the MCO of the intended recoupment; and the MCO’s process for the provider or FMSA to appeal the intended recoupment. Subsection (b) of the proposed rule allows an MCO to recoup an overpayment only if the provider or FMSA does not appeal the alleged overpayment or appeals the alleged overpayment and the final decision from the appeal is favorable to the MCO.

Withdrawn Rules Re:

Withdrawing 26 TAC §509.1 and §509.2, which related to freestanding emergency medical care facilities.

CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER A. GENERAL PROVISIONS
26 TAC §509.1, §509.2

Proposed new §509.1 and §509.2, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 520), are withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 26 TAC §§509.21 – 509.30, which related to licensing requirements for freestanding medical care facilities.

CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER B. LICENSING REQUIREMENTS
26 TAC §§509.21 – 509.30

Proposed new §§509.21 – 509.30, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 520), are withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 26 TAC §§509.41 – 509.66, which related to operational requirements for freestanding medical care facilities.

CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
26 TAC §§509.41 – 509.66

Proposed new §§509.41 – 509.66, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 520), are withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 26 TAC §§509.81 – 509.85, which related to inspection and investigation procedures for freestanding medical care facilities.

CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER D. INSPECTION AND INVESTIGATION PROCEDURES
26 TAC §§509.81 – 509.85

Proposed new §§509.81 – 509.85, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 520), are withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Withdrawing 26 TAC §§509.101 – 509.109, which detailed enforcement procedures for freestanding emergency medical care facilities.

CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER E. ENFORCEMENT
26 TAC §§509.101 – 509.109

Proposed new §§509.101 – 509.109, published in the January 22, 2021, issue of the Texas Register (46 Tex Reg 520), are withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Adopted Rules Re:

New 1 TAC §355.8070, updating financial requirements for hospitals providing care to Medicaid clients and the uninsured through the creation of the Hospital Augmented Reimbursement Program.

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

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts new §355.8070, concerning the Hospital Augmented Reimbursement Program. Section 355.8070 is adopted with changes to the proposed text as published in the July 16, 2021, issue of the Texas Register (46 Tex Reg 4248). This rule will be republished.

BACKGROUND AND JUSTIFICATION

HHSC is creating this program to continue the financial transition for providers who have historically participated in the Delivery System Reform Incentive Payment program. We continue to work on solutions to preserve the financial resources many of our hospitals depend on to provide access to quality care to Medicaid clients and the uninsured. The Hospital Augmented Reimbursement Program would be created, subject to approval by the Centers for Medicare and Medicaid Services (CMS), through the Medicaid state plan. State plan programs and services do not impact 1115 Waiver budget neutrality. HHSC intends to submit state plan amendments to CMS to request authorization to make payments as described under new §355.8070 to non-state government-owned and -operated hospitals and to private hospitals. State plan amendments to include various hospital ownership types may be submitted on individual timelines. The program will provide additional funding to hospitals to help offset the cost hospitals incur while providing Medicaid services. The hospital’s maximum payment will be their individual Medicare payment gap. The most current Medicare upper payment limit (UPL) demonstration available at the time of calculation will be used.

In Addition Re:

Notice of Public Hearing on Proposed APR-DRG Grouper 38 Implementation for Reimbursement of Medicaid Hospital Inpatient Services

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on September 28, 2021, at 10:00 a.m., to receive public comments on the proposed implementation of APR-DRG Grouper 38 for Reimbursement of Medicaid Hospital Inpatient Services.

The implementation of APR-DRG Grouper 38 and statistical data is proposed to be effective October 1, 2021.

The proposed APR-DRG Grouper 38 statistical data was calculated in accordance with Title 1 of the Texas Administrative Code §355.8052, which addresses the reimbursement methodology for inpatient hospital reimbursement.

HEARING DETAILS

Due to the declared state of disaster stemming from COVID-19, this hearing will be conducted both in-person and as an online event. To join the hearing from your computer, tablet, or smartphone, register for the hearing in advance using the following link: https://attendee.gotowebinar.com/register/7047023327522879760.

The hearing will be held in compliance with Texas Human Resources Code §32.0282, which requires public notice of and hearings on proposed Medicaid reimbursements. A recording of the hearing will be archived and can be accessed on demand at https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings.

Members of the public may attend the rate hearing in person, which will be held in Public Hearing Room 125 in the John H. Winters Building at 701 W. 51st Street, Austin, Texas, or access a live stream of the meeting here. For the live stream, select the “Winters Live” tab.

A briefing packet describing the proposed APR-DRG Grouper 38 implementation will be made available at https://pfd.hhs.texas.gov/proposed-rate-packets on or after September 15, 2021. Interested parties may also obtain a copy of the briefing packet on or after that date by contacting HHSC Provider Finance by telephone at (512) 730-7401; by fax at (512) 730-7475; or by e-mail at PFD_Hospitals@hhsc.state.tx.us.

Public Notice – Heightened Scrutiny Review for Medicaid Home and Community Based Services Settings

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit a list of certain Medicaid settings to the Centers for Medicare & Medicaid Services (CMS) for heightened scrutiny review, as described in 42 Code of Federal Regulations 441.301(c)(5)(v), to demonstrate that the settings are eligible for delivery of home and community-based services (HCBS). The list is expected to be submitted to CMS by October 31, 2021.

BACKGROUND AND JUSTIFICATION

In March 2014, the Centers for Medicare and Medicaid Services (CMS) amended federal regulations to include new requirements for settings where Medicaid HCBS are provided. One purpose of the amended regulations is to ensure people receive Medicaid HCBS in settings that are integrated in the community. CMS has given states until March 17, 2023 to complete implementation of activities required to demonstrate compliance with the HCBS settings criteria.

CMS presumes that certain types of Medicaid HCBS settings have institutional or isolating qualities.

Prong 1 settings: Located in a hospital, nursing facility, intermediate care facility for individuals with an intellectual disability or related condition (ICF/IID) or institution for mental disease (IMD).
Prong 2 settings: Located on the grounds of, or immediately adjacent to, a public hospital, nursing facility, ICF/IID or IMD.
Prong 3 settings: Have the effect of isolating people from the broader community of people who do not receive HCBS.

CMS requires states to identify settings that fall into the prongs above and submit a numbered list of settings the state believes can overcome the institutional or isolating presumption. The list must include:

The prong that each setting falls into for heightened scrutiny;
A summary of how each setting has or will overcome the institutional or isolating presumption; and
The state’s plan for remediation to ensure compliance with the HCBS settings regulations by March 17, 2023.

HHSC has determined that all assisted living facilities (ALFs) participating in the STAR+PLUS HCBS program meet the criteria for heightened scrutiny review. Accordingly, HHSC plans to submit a list of all ALFs in the STAR+PLUS HCBS program to CMS for heightened scrutiny review.

OTHER INFORMATION

The heightened scrutiny list and accompanying information are available on the HHSC website at https://www.hhs.texas.gov/doing-business-hhs/provider-portals/long-term-care-providers/resources/home-community-based-services-hcbs.

Interested parties may obtain a free copy of the heightened scrutiny list and accompanying information by contacting Rachel Neely, Senior Policy Advisor, by U.S. mail, telephone, fax, or by email at the addresses below. Copies of the list and accompanying information will be available for review at the local county offices of HHSC, which were formerly the local offices of the Texas Department of Aging and Disability Services.

Public Notice – Texas State Plan for Medical Assistance Amendment Effective September 11, 2021

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendment is effective September 11, 2021.

BACKGROUND AND JUSTIFICATION

The purpose of the amendment is to increase the outpatient reimbursement rates for rural hospitals. HHSC proposes an increase to the outpatient services reimbursement by removing the cap that was established September 1, 2013, and applying a percentage increase to the cost to charge ratios for rural hospitals.

The proposed amendment will also eliminate the cost settlement of payments to maintain the level of payment for outpatient emergency department Services. HHSC proposes a decrease in the allowable charges to 55 percent for these services to accommodate the increase in cost to charge ratios and retain the payments below 65 percent of cost. The amendment explains the cost to charge ratio rate setting process by including a section specific to rural hospitals. The amendment establishes a minimum fee schedule for services delivered through the Medicaid managed care program for all rural hospitals.

HEARING DETAILS

A rate hearing was conducted online on July 12, 2021, at 9:00 a.m. Information about the proposed rate changes and the hearing were published in the July 2, 2021, issue of the Texas Register (46 TexReg 4046). The notice of hearing can be found at http://www.sos.state.tx.us/texreg/index.shtml.

Interested parties may obtain additional information and/or a free copy of the proposed amendment by contacting Kevin Niemeyer, State Plan Policy Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; by telephone at (512) 487-3349; by facsimile at (512) 730-7472; or by e-mail at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposed amendment will be available for review at the local county offices of HHSC, which were formerly the local offices of the Texas Department of Aging and Disability Services.

Department of Aging and Disability Services

Emergency Rules Re:

New 40 TAC §9.597, describing requirements for Texas Home Living providers in order to reduce the risk of COVID-19 transmission.

CHAPTER 9. INTELLECTUAL DISABILITY SERVICES–MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
SUBCHAPTER N. TEXAS HOME LIVING (TXHML) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)
40 TAC §9.597

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40 Texas Administrative Code, Chapter 9 Intellectual Disability Services–Medicaid State Operating Agency Responsibilities, new §9.597, concerning Program Provider Response to COVID-19 Emergency Rule in order to reduce the risk of transmission of COVID-19.

HHSC is adopting an emergency rule to reduce the risk of spreading COVID-19 to individuals in the Texas Home Living program. This new rule describes the requirements that Texas Home Living providers must immediately put into place.

BACKGROUND AND JUSTIFICATION

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

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

Texas State Board of Pharmacy

Proposed Rules Re:

Amending 22 TAC §283.12 to specify licensing requirements for Military Service Members, Military Veterans, and Military Spouses.

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS
22 TAC §283.12

The Texas State Board of Pharmacy proposes amendments to 22 TAC §283.12, concerning Licenses for Military Service Members, Military Veterans, and Military Spouses. The amendments, if adopted, specify that a copy of a permanent change of station order may be used as proof of a military spouse’s residency and add a new service branch to the definition of armed forces of the United States, in accordance with House Bill 139.

Amending 22 TAC §291.34 to clarify that a pharmacist may provide an emergency refill of insulin or insulin-related equipment or supplies under certain conditions.

CHAPTER 291. PHARMACIES
SUBCHAPTER B. COMMUNITY PHARMACY (CLASS A)
22 TAC §291.34

The Texas State Board of Pharmacy proposes amendments to 22 TAC §291.34, concerning Records. The amendments, if adopted, clarify that a pharmacist may provide an emergency refill of insulin or insulin-related equipment or supplies under certain conditions, in accordance with House Bill 1935.

Amending 22 TAC §291.36 to create class designations for certain community pharmacies.

CHAPTER 291. PHARMACIES
SUBCHAPTER B. COMMUNITY PHARMACY (CLASS A)
22 TAC §291.36

The Texas State Board of Pharmacy proposes amendments to §291.36, concerning Pharmacies Compounding Sterile Preparations (Class A-S). The amendments, if adopted, create the designation of Class A-N for community pharmacies engaged in the compounding of certain non-sterile preparations and Class A-SN for community pharmacies engaged in the compounding of both sterile preparations and certain non-sterile preparations.

Amending 22 TAC §291.77 to create class designations for certain institutional or ASC pharmacies.

CHAPTER 291. PHARMACIES
SUBCHAPTER D. INSTITUTIONAL PHARMACY (CLASS C)
22 TAC §291.77

The Texas State Board of Pharmacy proposes amendments to 22 TAC §291.77, concerning Pharmacies Compounding Sterile Preparations (Class C-S). The amendments, if adopted, create the designation of Class C-N for institutional or ASC pharmacies engaged in the compounding of certain non-sterile preparations and Class C-SN for institutional or ASC pharmacies engaged in the compounding of both sterile preparations and certain non-sterile preparations.

Amending 22 TAC §291.106 to create class designations for certain non-resident pharmacies.

CHAPTER 291. PHARMACIES
SUBCHAPTER F. NON-RESIDENT PHARMACY (CLASS E)
22 TAC §291.106

The Texas State Board of Pharmacy proposes amendments to §291.106, concerning Pharmacies Compounding Sterile Preparations (Class E-S). The amendments, if adopted, create the designation of Class E-N for non-resident pharmacies engaged in the compounding of certain non-sterile preparations and Class E-SN for non-resident pharmacies engaged in the compounding of both sterile preparations and certain non-sterile preparations.

Amending 22 TAC §291.131 to update requirements for individuals engaged in certain non-sterile compounding.

CHAPTER 291. PHARMACIES
SUBCHAPTER G. SERVICES PROVIDED BY PHARMACIES
22 TAC §291.131

The Texas State Board of Pharmacy proposes amendments to 22 TAC §291.131, concerning Pharmacies Compounding Non-Sterile Preparations. The amendments, if adopted, add definitions of “cleaning” and “sanitizing”, update requirements for all personnel engaged in non-sterile compounding, add additional requirements for personnel engaged in certain types of non-sterile compounding, and update environmental and equipment requirements for non-sterile compounding.

Amending 22 TAC §297.10 to update registration requirements for Military Service Members, Military Veterans, and Military Spouses.

CHAPTER 297. PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES
22 TAC §297.10

The Texas State Board of Pharmacy proposes amendments to 22 TAC §297.10, concerning Registration for Military Service Members, Military Veterans, and Military Spouses. The amendments, if adopted, specify that a copy of a permanent change of station order may be used as proof of a military spouse’s residency and add a new service branch to the definition of armed forces of the United States, in accordance with House Bill 139.

Withdrawing 22 TAC §291.14, which related to a pharmacy ownership training course.

Withdrawn Rules Re:

CHAPTER 291. PHARMACIES
SUBCHAPTER A. ALL CLASSES OF PHARMACIES
22 TAC §291.14

Proposed amended §291.14, published in the December 11, 2020, issue of the Texas Register (45 Tex Reg 8821), is withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, §2001.027, and 1 TAC §91.38(d).)

Department of State Health Services

Proposed Rules Re:

Repealing 25 TAC §157.132 to update requirements related to emergency medical services trauma systems.

CHAPTER 157. EMERGENCY MEDICAL CARE
SUBCHAPTER G. EMERGENCY MEDICAL SERVICES TRAUMA SYSTEMS
25 TAC §157.132

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes the repeal of §157.132, concerning the Regional Trauma Account; the repeal and replace with new §157.122, concerning Trauma Service Areas; and the repeal and replace with new §157.133, concerning Requirements for Stroke Facility Designation.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to update the content and processes with the advances and practices that have developed since these rules were last revised. The repeal and new §157.122, Trauma Service Areas (TSAs), updates the geographic alignment change to a TSA and the process for realignment of a county to a TSA.

House Bill (H.B.) 7, 84th Legislature, Regular Session, 2015, removed the funds from regional trauma account No. 5137 and reallocated the funds to the designated trauma facility and emergency medical services (EMS) account No. 5111. The repeal of §157.132 removes the regional trauma account in order to align with the legislative direction of H.B. 7.

The repeal and new §157.133 aligns the Texas systems with national stroke standards. Per Texas Health and Safety Code §773.024, the Governor’s EMS and Trauma Advisory Council Stroke Committee shall consult the criteria for stroke facilities established by national medical organizations, such as The Joint Commission, in developing the stroke emergency transport plan and stroke facility criteria. The extensive revisions to the rule text and reorganization of the subsections necessitate repeal and replacement, rather than an amendment to this section.

SECTION-BY-SECTION SUMMARY

The proposed repeal and replace with new §157.122, is necessary due to the number of amendments to the rule that was last amended in 2004. The proposed new §157.122 describes the geographic regions of the TSAs and the process for realignment. The individual counties were removed from the rule text.
The proposed repeal of §157.132, is necessary because H.B. 7 removed the funds from regional trauma account No. 5137 and reallocated the funds to designated trauma facility and EMS account No 5111.
The proposed repeal and replace with new §157.133, is necessary because of the number of updates to the rule. It was adopted in 2006 and is inconsistent with the current national stroke standards. The proposed new §157.133 describes the levels of stroke facility designation, the requirements for each designation, and process for designation.

New 25 TAC §157.122 and §157.133 to replace the old rules relating to emergency medical services trauma systems.

CHAPTER 157. EMERGENCY MEDICAL CARE
SUBCHAPTER G. EMERGENCY MEDICAL SERVICES TRAUMA SYSTEMS
25 TAC §§157.122, 157.133

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed repeal and replace with new §157.122, is necessary due to the number of amendments to the rule that was last amended in 2004. The proposed new §157.122 describes the geographic regions of the TSAs and the process for realignment. The individual counties were removed from the rule text.
The proposed repeal of §157.132, is necessary because H.B. 7 removed the funds from regional trauma account No. 5137 and reallocated the funds to designated trauma facility and EMS account No 5111.
The proposed repeal and replace with new §157.133, is necessary because of the number of updates to the rule. It was adopted in 2006 and is inconsistent with the current national stroke standards. The proposed new §157.133 describes the levels of stroke facility designation, the requirements for each designation, and process for designation.

Texas Council for Developmental Disabilities

Proposed Rules Re:

Amending 40 TAC §876.9 to update charges for access to public records.

CHAPTER 876. GENERAL PROVISIONS
40 TAC §876.9

The Texas Council for Developmental Disabilities (Council) proposes amendments to §876.9, concerning Charges for Access to Public Records.

Amending 40 TAC §§877.1, 877.2, 877.4 to update requirements relating to grant awards.

CHAPTER 877. GRANT AWARDS
40 TAC §§877.1, 877.2, 877.4

The Texas Council for Developmental Disabilities (Council) proposes amendments to §877.1, concerning General Provisions; §877.2, concerning Application and Review Process; and to §877.4, concerning Appeal of Funding Decisions.

Review of Agency Rules Re:

Adopted Rule Reviews for 40 TAC Chapter 876 (Grant Provisions) and Chapter 877 (Grant Awards).

Title 40, Part 21

The Texas Council for Developmental Disabilities (Council) adopts the review of Chapter 876, General Provisions, §§876.1 – 876.12, pursuant to the Texas Government Code, §2001.039.

The proposed rule review was published in the June 11, 2021, issue of the Texas Register (46 Tex Reg 3621).

The Council considered, among other things, whether the reasons for adoption of these rules continue to exist. No comments were received on the proposed rule review. As a result of the review, the Council determined that the rules are still necessary and readopts this chapter.

The Texas Council for Developmental Disabilities (Council) adopts the review of Chapter 877, Grant Awards, §§877.1 – 877.5, pursuant to the Texas Government Code, §2001.039.

The proposed rule review was published in the June 11, 2021, issue of the Texas Register (46 TexReg 3621).

Elsewhere in this issue of the Texas Register, the Texas Council for Developmental Disabilities contemporaneously adopts amendments to §877.1 and §877.3.

In Addition Re:

Request for Applications: Increasing Community-based Access to Vaccines

OVERVIEW

The Texas Council for Developmental Disabilities (TCDD) announces the availability of funds for organizations to engage in communication and marketing activities that will lead to an increase in the number of people who receive the COVID-19 vaccine. Groups that will be included in project activities are people with disabilities, including developmental disabilities, their families, friends, caregivers, direct support professionals, and other health care providers.

BACKGROUND

Outcomes will be achieved through community-based activities such as: development and distribution of educational materials about the importance of getting a vaccine; development and distribution of materials on how to access a vaccine at a clinic or in-home; providing information about resources such as transportation or other supports to access a vaccine; and providing technical assistance to local health departments on vaccine accessibility. Communication and marketing products may include but are not limited to: print materials, video, social media content, content for local media, community-based informational events, and the coordination of local peer ambassador groups.

Applications must be received by 11:59 p.m. on October 22, 2021.

Texas State Board of Examiners of Professional Counselors

Withdrawn Rules Re:

Withdrawing 22 TAC §681.2, which related to art therapy.

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

The Texas State Board of Examiners of Professional Counselors withdraws the proposed amended §681.2 which appeared in the June 18, 2021, issue of the Texas Register (46 Tex Reg 3679).

Withdrawing 22 TAC §681.93, which related to application and licensing requirements.

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

The Texas State Board of Examiners of Professional Counselors withdraws the proposed amended §681.93 which appeared in the June 18, 2021, issue of the Texas Register (46 Tex Reg 3689).

State Board of Dental Examiners

Adopted Rules Re:

Amending 22 TAC §101.1 to require dental applicants to complete a human trafficking prevention course.

CHAPTER 101. DENTAL LICENSURE
22 TAC §101.1

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §101.1, concerning the general qualifications for dental licensure. To be eligible for licensure, this amendment requires dental applicants to complete a human trafficking prevention course approved by the executive commissioner of the health and human services commission. This amendment is adopted without changes to the proposed text as published in the July 9, 2021, issue of the Texas Register (46 Tex Reg 4073), and will not be republished.

Amending 22 TAC §103.1 to require dental hygiene applicants to complete a human trafficking prevention course.

CHAPTER 103. DENTAL HYGIENE LICENSURE
22 TAC §103.1

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §103.1, concerning the general qualifications for dental hygiene licensure. To be eligible for licensure, this amendment requires dental hygiene applicants to complete a human trafficking prevention course approved by the executive commissioner of the health and human services commission. This amendment is adopted without changes to the proposed text as published in the July 9, 2021 issue of the Texas Register (46 Tex Reg 4074), and will not be republished.

Amending 22 TAC §108.7 to remove the requirements pertaining to the minimum standards for safe practice during the COVID-19 pandemic.

CHAPTER 108. PROFESSIONAL CONDUCT
SUBCHAPTER A. PROFESSIONAL RESPONSIBILITY
22 TAC §108.7

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §108.7, concerning the minimum standard of care. This amendment removes the requirements pertaining to the minimum standards for safe practice during the COVID-19 pandemic because the Board’s emergency rule pertaining to the pandemic has since expired on June 18, 2021. This amendment is adopted without changes to the proposed text as published in the July 9, 2021, issue of the Texas Register (46 Tex Reg 4075), and will not be republished.

Amending 22 TAC §108.55 to establish oral medicine, dental anesthesiology, and orofacial pain as specialty areas.

CHAPTER 108. PROFESSIONAL CONDUCT
SUBCHAPTER E. BUSINESS PROMOTION
22 TAC §108.55

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §108.55, concerning advertising for general dentists. This amendment updates subsection (a) to include the three additional specialty areas (oral medicine, dental anesthesiology, and orofacial pain) that were recently added to 22 TAC §108.54(b). This amendment is adopted with no changes to the proposed text as published in the July 9, 2021 issue of the Texas Register (46 Tex Reg 4077), and will not be republished.

Amending 22 TAC §114.6 to require dental assistant applicants to complete a human trafficking prevention course.

CHAPTER 114. EXTENSION OF DUTIES OF AUXILIARY PERSONNEL–DENTAL ASSISTANTS
22 TAC §114.6

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §114.6, concerning the general qualifications for dental assistant registration or certification. To be eligible for registration or certification, this amendment requires dental assistant applicants to complete a human trafficking prevention course approved by the executive commissioner of the health and human services commission. This amendment is adopted without changes to the proposed text as published in the July 9, 2021, issue of the Texas Register (46 Tex Reg 4078). The rule will not be republished.