25 Sep 2020

Texas Register September 25, 2020 Volume: 45 Number: 39

by | posted in: Governor, State Board of Dental Examiners, Texas Department of Insurance, Texas Department of Licensing and Regulation, Texas Health and Human Services Commission |

Texas Register Table of Contents

Governor

 

Appointments

Governor appoints three new members to the Nursing Facility Administrators Advisory Committee

Appointments for September 10, 2020Appointed to the Nursing Facility Administrators Advisory Committee, for terms to expire February 1, 2025: Melinda Mitchell Jones of Lubbock, Texas (replacing Donna Scott Tilley, Ph.D. of Colleyville, whose term expired);Hari K. Namboodiri of McAllen, Texas (replacing Michael J. Keller, Ph.D. of Plainview, whose term expired); Catherine A. “Cathy” Wilson of Austin, Texas (replacing Barbara Sunderland Manousso, Ph.D. of Houston, whose term expired).

Texas Department of Licensing and Regulation

Proposed Rules

Amending 16 TAC §110.24 and §110.25 to require athletic trainers to complete human trafficking prevention training

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATIONCHAPTER 110. ATHLETIC TRAINERS16 TAC §110.24, §110.25OVERVIEWThe Texas Department of Licensing and Regulation (Department) proposes amendments to the existing rules at 16 Texas Administrative Code (TAC), Chapter 110, §110.24 and §110.25, regarding the Athletic Trainers Program. The proposed rules amend §110.24 by requiring athletic trainers to complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116 and to provide proof of completion as prescribed by the Department.The proposed rules amend §110.25 by allowing an HHSC-approved human trafficking prevention training course to count toward continuing education requirements. The proposed rules would allow licensees to claim one clock-hour of credit for each clock-hour spent on the training course.BACKGROUND AND JUSTIFICATIONThe proposed rules are necessary to implement House Bill (HB) 2059, 86th Legislature, Regular Session (2019). HB 2059 requires athletic trainers and other health care practitioners to complete a human trafficking prevention training course in order to renew their license. The Executive Commissioner of the Health and Human Services Commission (HHSC) approves human trafficking prevention courses, including at least one course that is available without charge, and posts a list of approved courses on the HHSC website. The statutory provisions created by HB 2059 are located in Texas Occupations Code, Chapter 116. The proposed rules implement this training requirement and allow the training to count toward the required minimum continuing education for athletic trainers.The proposed change to §110.24 was presented to and discussed by the Advisory Board of Athletic Trainers (Advisory Board) at its meeting on June 22, 2020. The Advisory Board did not make any changes to the proposed amendment. The Advisory Board voted and recommended that the proposed change to §110.24 be published in the Texas Register for public comment. Additionally, the Advisory Board discussed allowing the training to count toward continuing education requirements.

Texas Health and Human Services Commission

Proposed Rules

Amending 26 TAC §302.1 to clarify the purpose for the Mental Health First Aid (MHFA) program

CHAPTER 302. IDD-BH TRAININGSUBCHAPTER A. MENTAL HEALTH FIRST AID [PREVENTION STANDARDS]26 TAC §302.1OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §302.1, concerning Purpose.The proposed amendment to §302.1, Purpose, updates terms, clarifies the entities or persons who shall receive the training, and states that the MHFA curriculum is owned and updated by the National Council for Behavioral Health.BACKGROUND AND JUSTIFICATION The purpose of the proposal is to include Local Behavioral Health Authorities (LBHAs) in the requirements for Local Mental Health Authorities (LMHAs) to provide mental health first aid (MHFA) training to public school district employees, higher education employees, and community members. The proposed amendments update rules to ensure consistency with statute; remove references to managed care organizations; clarify the roles of LMHAs and LBHAs in providing training; and outline guidelines for LMHAs and LBHAs to follow.

Texas Health and Human Services Commission

Proposed Rules

Amending 26 TAC §302.5 to update terminology related to the Mental Health First Aid (MHFA) program

CHAPTER 302. IDD-BH TRAININGSUBCHAPTER A. MENTAL HEALTH FIRST AID [PREVENTION STANDARDS]26 TAC §302.5OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §302.5, concerning Definitions.The proposed amendment to §302.5, Definitions, removes outdated terms and references to the “Department of State Health Services” and “managed care organization”. HHSC is added as a new term under definitions. The definitions for “LBHA” and “LMHA” are reorganized.BACKGROUND AND JUSTIFICATION The purpose of the proposal is to include Local Behavioral Health Authorities (LBHAs) in the requirements for Local Mental Health Authorities (LMHAs) to provide mental health first aid (MHFA) training to public school district employees, higher education employees, and community members. The proposed amendments update rules to ensure consistency with statute; remove references to managed care organizations; clarify the roles of LMHAs and LBHAs in providing training; and outline guidelines for LMHAs and LBHAs to follow.

Texas Health and Human Services Commission

Proposed Rules

Amending 26 TAC §302.9 to clarify local mental health authority responsibilities regarding the Mental Health First Aid (MHFA) program

CHAPTER 302. IDD-BH TRAININGSUBCHAPTER A. MENTAL HEALTH FIRST AID [PREVENTION STANDARDS]26 TAC §302.9OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §302.9, concerning Local Mental Health Authority Responsibilities.The proposed amendment to §302.9, Local Mental Health Authority Responsibilities, renames the section to include LBHAs and adds new subsections (b) – (g) providing training requirements to ensure consistency with statute.BACKGROUND AND JUSTIFICATION The purpose of the proposal is to include Local Behavioral Health Authorities (LBHAs) in the requirements for Local Mental Health Authorities (LMHAs) to provide mental health first aid (MHFA) training to public school district employees, higher education employees, and community members. The proposed amendments update rules to ensure consistency with statute; remove references to managed care organizations; clarify the roles of LMHAs and LBHAs in providing training; and outline guidelines for LMHAs and LBHAs to follow.

Texas Health and Human Services Commission

Proposed Rules

Amending 26 TAC §306.204 to require facilities with a contracted psychiatric bed to issue antipsychotic medications to certain patients upon discharge

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEMSUBCHAPTER D. MENTAL HEALTH SERVICES–ADMISSION, CONTINUITY, AND DISCHARGEDIVISION 5. DISCHARGE AND ABSENCES FROM A STATE MENTAL HEALTH FACILITY OR FACILITY WITH A CONTRACTED PSYCHIATRIC BED26 TAC §306.204OVERVIEWThe Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 306, Subchapter D, Division 1, an amendment to §306.204, concerning Discharge of an Individual Involuntarily Receiving Treatment.The proposed amendment to §306.204 adds new paragraph (3) in subsection (c), which requires facilities with CPBs to provide psychoactive medication and medication to counteract adverse side effects of psychoactive medications at the time an individual receiving court-ordered inpatient mental health services is furloughed or discharged. The requirement is contingent on available funding from HHSC to cover the cost of the medication. The amendment also renumbers the current paragraph (3) to paragraph (4).BACKGROUND AND JUSTIFICATIONThe purpose of this proposal is to implement §574.081(c-2) of the Texas Health and Safety Code, as amended by Senate Bill (S.B.) 362, 86th Legislature, Regular Session, 2019. The proposed amendment outlines requirements for private mental health facilities with a contracted psychiatric bed (CPB) through HHSC, or funded and operated by a local mental health authority (LMHA) or local behavioral health authority (LBHA), to provide psychoactive medication, and any other medication prescribed to counteract adverse side effects of psychoactive medication, at the time an individual receiving court-ordered inpatient mental health services is furloughed or discharged from a facility with a CPB. The facility with a CPB is only required to provide the medication if funding to cover the cost of the medications is available to be paid to the facility for this purpose from HHSC. The facility with a CPB is not required to provide or pay for more than a seven day supply of the medication.

Texas Health and Human Services Commission

Proposed Rules

New 26 TAC, Chapter 307, Subchapter D, establishing the Outpatient Competency Restoration program

CHAPTER 307. BEHAVIORAL HEALTH PROGRAMSSUBCHAPTER D. OUTPATIENT COMPETENCY RESTORATION26 TAC §§307.151, 307.153, 307.155, 307.157, 307.159, 307.161, 307.163, 307.165, 307.167, 307.169, 307.171, 307.173, 307.175OVERVIEWThe Executive Commissioner of the Health and Human Services Commission (HHSC) proposes new Subchapter D, concerning Outpatient Competency Restoration in Title 26, Chapter 307. The new subchapter consists of §307.151, concerning Purpose; §307.153, concerning Application; §307.155, concerning Definitions; §307.157, concerning Criteria for Admission to an Outpatient Competency Restoration Program; §307.159, concerning Recommendation Regarding Outpatient Competency Restoration Program Admission; §307.161, concerning General Service Requirements; §307.163, concerning Assessment, Reassessment, and Court Reporting; §307.165, concerning Discharge Requirements; §307.167, concerning Data; §307.169, concerning Written Policies and Procedures; §307.171, concerning Staff Member Training; §307.173, concerning Rights; and §307.175, concerning Compliance with Statutes and Rules.BACKGROUND AND JUSTIFICATIONThe proposed new rules implement amendments made to the Code of Criminal Procedure, Chapter 46B by Senate Bill (S.B.) 1326 (85th Legislature, Regular Session, 2017) that added competency restoration to outpatient treatment options. Specifically, S.B. 1326 states that an individual charged with certain crimes may be released on bail and ordered to participate in an outpatient competency restoration (OCR) program contingent upon the availability of the service and an evaluation of the individual’s level of risk to the community. This proposal establishes standards for entities that contract with HHSC to provide OCR services.SECTION-BY-SECTION SUMMARYA summary of each rule in new Subchapter D (Outpatient Competency Restoration) is included at 45 Tex Reg 6667. 

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §3.3701 to update certain references regarding the applicability and scope of general requirements to preferred and exclusive provider plans

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESSUBCHAPTER X. PREFERRED AND EXCLUSIVE PROVIDER PLANSDIVISION 1. GENERAL REQUIREMENTS28 TAC §3.3701OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §3.3701 (Applicability and Scope), concerning preferred provider benefit plans (PPBPs) and exclusive provider benefit plans (EPBPs).SUMMARY OF CHANGES An amendment to Subsection (c) modifies the reference to provisions to which 28 TAC Chapter 3, Subchapter X is subject, changing the reference to the specific sections of Insurance Code Chapter 1451, Subchapter C to cite the subchapter as a whole, in order to simplify the citation and incorporate the section added to the subchapter by HB 1757. The amendment also reorganizes the referenced provisions into numerical order.BACKGROUND AND JUSTIFICATIONSection 3.3701 implements House Bill 1757, 86th Legislature, Regular Session (2019).HB 1757 amended Insurance Code Chapter 1451, Subchapter C to add pharmacists among other health care providers in Subchapter C giving an insured the authority to select a pharmacist as a health care provider under the insured’s health insurance policy.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §3.3702 to update certain definitions related to preferred and exclusive provider plans

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESSUBCHAPTER X. PREFERRED AND EXCLUSIVE PROVIDER PLANSDIVISION 1. GENERAL REQUIREMENTS28 TAC §3.3702OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §3.3702 (Definitions), concerning preferred provider benefit plans (PPBPs) and exclusive provider benefit plans (EPBPs).SUMMARY OF CHANGES Amendments to this section implement HB 3911 and SB 1742. The proposed amendments to Subchapter X, Division 2 generally broaden the division’s applicability to both PPBP and EPBP networks. The definition of “exclusive provider network” in §3.3702(b)(7) is being amended to broaden its applicability to both PPBP and EPBP networks to conform to the generally broadened applicability of Subchapter X, Division 2. Specifically, the amendments replace the defined term “exclusive provider network” with “provider network” and add a reference to PPBPs where EPBPs are referenced in that definition. The amendments also move the new definition of “provider network” to §3.3702(b)(16) to keep the definitions in alphabetical order. As a result of the relocation of the definition of “provider network,” §3.3702(b)(8) – (15) are renumbered. The definition of “facility” in current §3.3702(b)(8) is amended by replacing the definition with a reference to the new definition of “facility” in Insurance Code §1451.501. The definition of “facility-based physician” in current §3.3702(b)(9) is amended by deleting the “or” and adding the words “or an assistant surgeon.” Amending §3.3702(8) – (9) aligns the definitions with the new definitions of “facility” and “facility-based physician” in Insurance Code §1451.501 added by SB 1742. In addition to these amendments, the period at the end of §3.3702(b) is changed to a colon and the word “subparagraphs” in §3.3702(b)(17)(C) is capitalized, for consistency with agency rule drafting style.BACKGROUND AND JUSTIFICATIONSection 3.3702 implements House Bill 3911, 86th Legislature, Regular Session (2019) and Senate Bill 1742, 86th Legislature, Regular Session (2019). HB 3911 amended Insurance Code §1301.0056 to provide that the Commissioner examine both PPBPs and EPBPs at least once every three years. The examinations should include qualifying examinations. Previously, the statute only required that EPBPs be examined at least once every five years.Article 1 of SB 1742 amended Insurance Code Chapter 1451, Subchapter K to add more detailed requirements for health care provider directories, including a requirement for more information regarding facilities and facility-based physicians.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §3.3705 to update communication requirements for preferred and exclusive provider plans

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESSUBCHAPTER X. PREFERRED AND EXCLUSIVE PROVIDER PLANSDIVISION 1. GENERAL REQUIREMENTS28 TAC §3.3705OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §3.3705 (Nature of Communications with Insureds; Readability, Mandatory Disclosure Requirements, and Plan Designations), concerning preferred provider benefit plans (PPBPs) and exclusive provider benefit plans (EPBPs).SUMMARY OF CHANGES Amendments to this section implement SB 1742 and clarify existing requirements. Section 3.3705(b)(12) is amended by requiring a provider’s “street address” instead of “location” and a provider’s telephone number and specialty, if any, in order to align with the requirements of Insurance Code §1451.504 and §1451.505 as amended by SB 1742. Section 3.3705(c) is amended to replace the specific provider listing submission instructions with directions to follow submission instructions on TDI’s website. This amendment will allow TDI to specify an electronic means of submitting notices and update submission instructions as needed. The amendment to §3.3705(l) clarifies the second sentence to make it more readable and the reference to §3.3705(l)(1) – (9) is expanded to include new Paragraphs (10) and (11). Section 3.3705(l)(2) is amended by deleting the current “and” and adding the words “and assistant surgeons” at the end of the paragraph to align with the new definition of “facility-based physician” in Insurance Code §1451.501 added by SB 1742. Amendments add new §3.3705(l)(10) and (11) to implement the new facility and facility-based physician provider directory information requirements in Insurance Code §1451.504 as amended by SB 1742. Section 3.3705(q)(1) is amended by replacing the direction to mail the notice with directions to follow submission instructions on TDI’s website. This amendment will allow TDI to specify an electronic means of submitting notices and update submission instructions as needed. In addition to these amendments, the words “subsection,” “paragraph,” “paragraphs,” “subparagraph,” and “subparagraphs” are capitalized where they appear throughout the section, for consistency with agency rule drafting style.BACKGROUND AND JUSTIFICATIONSection 3.3705 implements Senate Bill 1742, 86th Legislature, Regular Session (2019). Article 1 of SB 1742 amended Insurance Code Chapter 1451, Subchapter K to add more detailed requirements for health care provider directories, including a requirement for more information regarding facilities and facility-based physicians.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §3.3709 to clarify reporting requirements for preferred and exclusive provider plans contracting with CHIP, Medicaid, or the State Rural Health Care System

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESSUBCHAPTER X. PREFERRED AND EXCLUSIVE PROVIDER PLANSDIVISION 1. GENERAL REQUIREMENTS28 TAC §3.3709OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §3.3709 (Annual Network Adequacy Report), concerning preferred provider benefit plans (PPBPs) and exclusive provider benefit plans (EPBPs).SUMMARY OF CHANGES An amendment to this section adds new §3.3709(e). This subsection provides that §3.3709 does not apply to a PPBP or EPBP written by an insurer for a contract with HHSC to provide services under CHIP, Medicaid, or with the State Rural Health Care System. TDI’s review of the annual network adequacy report is duplicative of HHSC’s review of its contractors’ networks. In addition to this amendment, the words “subsection” and “paragraphs” are capitalized where they appear in the section, for consistency with agency rule drafting style.BACKGROUND AND JUSTIFICATIONThe amendments to §3.3709 and §3.3722 and the repeal of §3.9208 eliminate certain network adequacy review requirements for a PPBP or EPBP written by an insurer for a contract with HHSC to provide services under CHIP, Medicaid, or with the State Rural Health Care System. HHSC conducts its own network adequacy reviews of insurers with which it contracts that are duplicative of TDI’s review. The changes will conserve agency resources and reduce the regulatory burden and costs imposed on HHSC program participants.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §3.3720 to extend requirements of the subsection to preferred provider benefit plans, as well as exclusive provider benefit plans

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESDIVISION 2. PREFERRED AND EXCLUSIVE PROVIDER PLANS REQUIREMENTS28 TAC §3.3720 OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §3.3720 (Preferred and Exclusive Provider Benefit Plan Requirements), concerning preferred provider benefit plans (PPBPs) and exclusive provider benefit plans (EPBPs). SUMMARY OF CHANGES The heading of §3.3720 is amended to add the words “Preferred and,” and the text is revised to specify which sections are applicable to both PPBPs and EPBPs, and which sections are applicable only to EPBPs. The amendments to this section implement HB 3911 by making §§3.3721 – 3.3723 applicable to both PPBPs and EPBPs instead of only EPBPs while specifying that §3.3724 and §3.3725 remain applicable only to EPBPs.BACKGROUND AND JUSTIFICATIONSection 3.3720 implements House Bill 3911, 86th Legislature, Regular Session (2019). HB 3911 amended Insurance Code §1301.0056 to provide that the Commissioner examine both PPBPs and EPBPs at least once every three years. The examinations should include qualifying examinations. Previously, the statute only required that EPBPs be examined at least once every five years.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §3.3721 to clarify network-approval requirements for preferred and exclusive provider benefit plans

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESDIVISION 2. PREFERRED AND EXCLUSIVE PROVIDER PLANS REQUIREMENTS28 TAC §3.3721 OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §3.3721 (Preferred and Exclusive Provider Benefit Plan Network Approval Required), concerning preferred provider benefit plans (PPBPs) and exclusive provider benefit plans (EPBPs). SUMMARY OF CHANGES The heading of §3.3721 is amended to add the words “Preferred and,” and the text of the section is revised to address both PPBPs and EPBPs. The amendments to this section implement HB 3911 by making provider benefit plan network approval required for both PPBPs and EPBPs instead of only EPBPs. Both PPBPs and EPBPs are now required to undergo qualifying examinations under Insurance Code §1301.0056 as amended by HB 3911.BACKGROUND AND JUSTIFICATIONSection 3.3721 implements House Bill 3911, 86th Legislature, Regular Session (2019). HB 3911 amended Insurance Code §1301.0056 to provide that the Commissioner examine both PPBPs and EPBPs at least once every three years. The examinations should include qualifying examinations. Previously, the statute only required that EPBPs be examined at least once every five years.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §3.3722 to update the network-approval application process for preferred and exclusive benefit provider plans

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESDIVISION 2. PREFERRED AND EXCLUSIVE PROVIDER PLANS REQUIREMENTS28 TAC §3.3722OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §3.3722 (Application for Preferred and Exclusive Provider Benefit Plan Approval; Qualifying Examination; Network Modifications), concerning preferred provider benefit plans (PPBPs) and exclusive provider benefit plans (EPBPs). SUMMARY OF CHANGES The heading of §3.3722 is amended to add the words “Preferred and,” and the text of Subsections (a), (c)(4)(B), and (c)(7) is revised to address both PPBPs and EPBPs. These amendments implement HB 3911 by making this section applicable to both PPBPs and EPBPs instead of only EPBPs. Section 3.3722(a) is amended by replacing the direction to mail the application with a reference to follow submission instructions on TDI’s website. This amendment will allow TDI to specify an electronic means of submitting applications and update submission instructions as needed. New §3.3722(c)(9)(C) – (D) is added to implement the new facility and facility-based physician provider directory information requirements in Insurance Code §1451.504 from SB 1742. New §3.3722(f) is added, which provides that §3.3722(c)(9) and (d)(3) do not apply to a PPBP or EPBP written by an insurer for a contract with HHSC to provide services under CHIP, Medicaid, or with the State Rural Health Care System from submitting network configuration information or applying for approval for network modifications under §3.3722. It is not necessary for TDI to review network configuration information or require an application for approval for network modifications because it is duplicative of HHSC’s review of its contractors’ networks. In addition to these amendments, the words “subsection,” “paragraph,” and “paragraphs” are capitalized where they appear throughout the section, for consistency with agency rule drafting style.BACKGROUND AND JUSTIFICATIONSection 3.3722 implements House Bill 3911, 86th Legislature, Regular Session (2019) and Senate Bill 1742, 86th Legislature, Regular Session (2019). HB 3911 amended Insurance Code §1301.0056 to provide that the Commissioner examine both PPBPs and EPBPs at least once every three years. The examinations should include qualifying examinations. Previously, the statute only required that EPBPs be examined at least once every five years.Article 1 of SB 1742 amended Insurance Code Chapter 1451, Subchapter K to add more detailed requirements for health care provider directories, including a requirement for more information regarding facilities and facility-based physicians.The amendments to §3.3709 and §3.3722 and the repeal of §3.9208 eliminate certain network adequacy review requirements for a PPBP or EPBP written by an insurer for a contract with HHSC to provide services under CHIP, Medicaid, or with the State Rural Health Care System. HHSC conducts its own network adequacy reviews of insurers with which it contracts that are duplicative of TDI’s review. The changes will conserve agency resources and reduce the regulatory burden and costs imposed on HHSC program participants.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §3.3723 to update examination requirements for preferred and exclusive provider benefit plans

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESDIVISION 2. PREFERRED AND EXCLUSIVE PROVIDER PLANS REQUIREMENTS28 TAC §3.3723OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §3.3723 (Examinations), concerning preferred provider benefit plans (PPBPs) and exclusive provider benefit plans (EPBPs). SUMMARY OF CHANGES Amendments to this section implement HB 3911 and clarify applicable law. Section 3.3723(a) is amended to address both PPBPs and EPBPs and to require an examination at least once every three years instead of five years. Both PPBPs and EPBPs must now be examined at least once every three years under Insurance Code §1301.0056 as amended by HB 3911. Section 3.3723(b) is amended to clarify that examinations are conducted pursuant to Insurance Code Chapter 1301 in addition to the other listed authorities.BACKGROUND AND JUSTIFICATIONSection 3.3723 implements House Bill 3911, 86th Legislature, Regular Session (2019). HB 3911 amended Insurance Code §1301.0056 to provide that the Commissioner examine both PPBPs and EPBPs at least once every three years. The examinations should include qualifying examinations. Previously, the statute only required that EPBPs be examined at least once every five years.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §3.9208 to remove duplicative network accessibility and availability requirements for exclusive provider benefit plans

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESSUBCHAPTER KK. EXCLUSIVE PROVIDER BENEFIT PLAN28 TAC §3.9208OVERVIEWThe Texas Department of Insurance proposes to repeal 28 TAC §3.9208 (Provider Network: Accessibility and Availability), concerning preferred provider benefit plans (PPBPs) and exclusive provider benefit plans (EPBPs).SUMMARY OF CHANGES TDI proposes the repeal of §3.9208. Repeal of this section removes the requirement that EPBPs subject to Subchapter KK must comply with the network accessibility and availability requirements as outlined in 28 TAC §11.1607. Section 3.9208 is not necessary, because the requirements of §11.1607 are duplicative of HHSC’s review of its contractors’ networks.BACKGROUND AND JUSTIFICATIONThe amendments to §3.3709 and §3.3722 and the repeal of §3.9208 eliminate certain network adequacy review requirements for a PPBP or EPBP written by an insurer for a contract with HHSC to provide services under CHIP, Medicaid, or with the State Rural Health Care System. HHSC conducts its own network adequacy reviews of insurers with which it contracts that are duplicative of TDI’s review. The changes will conserve agency resources and reduce the regulatory burden and costs imposed on HHSC program participants.

Texas Department of Insurance

Proposed Rules

Repealing 28 TAC §§3.8001 – 3.8030 and replacing with new §3.8001 to clarify and update chemical dependency treatment standards

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIESSUBCHAPTER HH. STANDARDS FOR REASONABLE COST CONTROL AND UTILIZATION REVIEW FOR CHEMICAL DEPENDENCY TREATMENT CENTERS28 TAC §§3.8001 – 3.8005, 3.8007 – 3.8030OVERVIEWThe Texas Department of Insurance (TDI) proposes to repeal 28 TAC §§3.8001 – 3.8030, which established chemical dependency treatment standards, including cost control and utilization review standards, and adopt new 28 TAC §3.8001 regulating chemical dependency treatment standards.SUMMARY OF CHANGES New §3.8001 provides that insurers, other third-party reimbursement sources, and chemical dependency treatment providers must use the chemical dependency treatment standards in 25 TAC, Chapter 448, Subchapter I (relating to treatment program services).BACKGROUND AND JUSTIFICATIONThe proposed repeal of §§3.8001 – 3.8030 and proposed adoption of new §3.8001 implements Insurance Code §1368.007. Section 1368.007 requires that TDI adopt by rule chemical dependency treatment standards for use by insurers, other third-party reimbursement sources, and chemical dependency treatment centers. These standards must provide for (1) reasonable control of costs necessary for inpatient and outpatient treatment of chemical dependency, including guidelines for treatment periods; and (2) appropriate utilization review of treatment, as well as necessary extensions of treatment.Proposed new §3.8001 requires insurers, other third-party reimbursement sources, and chemical dependency treatment providers to use chemical dependency treatment standards of care in 25 TAC, Chapter 448, Subchapter I, the rules adopted by the Texas Health and Human Services Commission (HHSC). Using HHSC’s standards in conjunction with 28 TAC Chapter 19 (relating to Licensing and Regulation of Insurance Professionals) and Insurance Code Chapter 4201, concerning Utilization Review Agents, serve as a means to comply with §1368.007 to control costs and conduct utilization review.Regulated persons must manage the sometimes-irreconcilable chemical dependency treatment standards of TDI and HHSC. By adopting HHSC’s standards, TDI will reduce regulatory burdens and costs imposed on regulated persons. Also, HHSC already regulates health care facilities, health care professionals, and public health, giving it access to current medical and scientific standards.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §11.204 to clarify application requirements for an HMO to obtain a certificate of authority

CHAPTER 11. HEALTH MAINTENANCE ORGANIZATIONSSUBCHAPTER C. APPLICATION FOR CERTIFICATE OF AUTHORITY28 TAC §11.204OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §11.204 (Contents), concerning health maintenance organizations (HMOs). SUMMARY OF CHANGESAn amendment to §11.204(15) capitalizes the word “paragraph” to conform the rule text to TDI’s current style. Amendments to §11.204(19)(B)(iv) and §11.204(19)(C)(iii) replace “city” with “the municipality in which the facility is located or county in which the facility is located if the facility is in the unincorporated area of the county” to align to the requirements of Insurance Code §1451.504 as amended by SB 1742. Amendments replace existing §11.204(19)(D) to require the additional information regarding health care facilities and facility-based physicians required under Insurance Code §1451.504 as amended by SB 1742. The existing language of §11.204(19)(D) is no longer needed because the information required by the provision is duplicative of the new requirements replacing it.BACKGROUND AND JUSTIFICATIONThe proposed amendments to §11.204 implement SB 1742. Senate Bill 1742 amends Insurance Code Chapter 1451, Subchapter K to add more detailed requirements for health care provider directories, including a requirement for more information regarding facilities and facility-based physicians. Senate Bill 1742 also amends Insurance Code §843.3481 to require HMOs to provide certain information regarding any preauthorization requirements for health care services.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §11.303 to clarify requirements for appealing an HMO examination 2500 Report

CHAPTER 11. HEALTH MAINTENANCE ORGANIZATIONSSUBCHAPTER D. REGULATORY REQUIREMENTS FOR AN HMO AFTER ISSUANCE OF CERTIFICATE OF AUTHORITY28 TAC §11.303OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §11.303 (Examination), concerning health maintenance organizations (HMOs). SUMMARY OF CHANGESAn amendment to §11.303(a) adds a reference to 28 TAC §7.83 to clarify that the section applies to an appeal of an HMO examination 2500report.BACKGROUND AND JUSTIFICATIONThe proposed amendments to §11.303 implement SB 1742. Senate Bill 1742 amends Insurance Code Chapter 1451, Subchapter K to add more detailed requirements for health care provider directories, including a requirement for more information regarding facilities and facility-based physicians. Senate Bill 1742 also amends Insurance Code §843.3481 to require HMOs to provide certain information regarding any preauthorization requirements for health care services.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §11.1600 to require that HMOs provide greater detail on their preauthorization requirements

CHAPTER 11. HEALTH MAINTENANCE ORGANIZATIONSSUBCHAPTER Q. OTHER REQUIREMENTS28 TAC §11.1600OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §11.1600 (Information to Prospective and Current Contract Holders and Enrollees), concerning health maintenance organizations (HMOs). SUMMARY OF CHANGESAmendment to §11.1600(b)(9) implements SB 1742 by requiring HMOs to provide the information required by Insurance Code §843.3481 and also references additional requirements relating to preauthorization in 28 TAC Chapter 19, Subchapter R. The current information required in §11.1600(b)(9) is being deleted and replaced because Insurance Code §843.3481 requires that HMOs provide greater detail on their preauthorization requirements. Amendments to §11.1600(d) and §11.1600(j) capitalize the words “subsection” and “subsections” to conform the rule text to TDI’s current style.BACKGROUND AND JUSTIFICATIONThe proposed amendments to §11.1600 implement SB 1742. Senate Bill 1742 amends Insurance Code Chapter 1451, Subchapter K to add more detailed requirements for health care provider directories, including a requirement for more information regarding facilities and facility-based physicians. Senate Bill 1742 also amends Insurance Code §843.3481 to require HMOs to provide certain information regarding any preauthorization requirements for health care services.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §11.1607 to to clarify reporting requirements for HMOs contracting with CHIP, Medicaid, or the State Rural Health Care System

CHAPTER 11. HEALTH MAINTENANCE ORGANIZATIONSSUBCHAPTER Q. OTHER REQUIREMENTS28 TAC §11.1607OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §11.1607 (Accessibility and Availability Requirements), concerning health maintenance organizations (HMOs). SUMMARY OF CHANGESAmendment to §11.1607(l) expands the existing provisions to provide that §11.1607 does not apply to a health benefit plan written by an HMO for a contract with HHSC to provide services under CHIP, Medicaid, or with the State Rural Health Care System. TDI’s review of the network adequacy requirements under this section is unnecessary, because it is duplicative of HHSC’s review of its contractors’ networks. Amendments to §11.1607(j) and §11.1600(k) capitalize the words “subsections” and “subsection” to conform the rule text to TDI’s current style.BACKGROUND AND JUSTIFICATIONThe proposed amendments to §11.1607 implement SB 1742. Senate Bill 1742 amends Insurance Code Chapter 1451, Subchapter K to add more detailed requirements for health care provider directories, including a requirement for more information regarding facilities and facility-based physicians. Senate Bill 1742 also amends Insurance Code §843.3481 to require HMOs to provide certain information regarding any preauthorization requirements for health care services.The proposed amendments to §11.1607 also eliminate certain network adequacy review requirements for a health benefit plan written by an HMO for a contract with HHSC to provide services under CHIP, Medicaid, or with the State Rural Health Care System. HHSC conducts its own network adequacy reviews of HMOs with which it contracts that are duplicative of TDI’s review. The changes will conserve agency resources and reduce the regulatory burden and costs imposed on these HHSC program participants.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §11.1610 to relieve an HMO contracting with CHIP, Medicaid, or with the State Rural Health Care System from the annual network adequacy report requirement

CHAPTER 11. HEALTH MAINTENANCE ORGANIZATIONSSUBCHAPTER Q. OTHER REQUIREMENTS28 TAC §11.1610OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §11.1610 (Annual Network Adequacy Report), concerning health maintenance organizations (HMOs). SUMMARY OF CHANGESThe proposed amendment to §11.1610 adds new §11.1610(g). This subsection provides that §11.1610 does not apply to a health benefit plan written by an HMO for a contract with HHSC to provide services under CHIP, Medicaid, or with the State Rural Health Care System from the annual network adequacy report requirement of §11.1610. TDI’s review of the annual network adequacy report under this section is unnecessary because it is duplicative of HHSC’s review of its contractors’ networks.BACKGROUND AND JUSTIFICATIONThe proposed amendments to §11.1610 implement SB 1742. Senate Bill 1742 amends Insurance Code Chapter 1451, Subchapter K to add more detailed requirements for health care provider directories, including a requirement for more information regarding facilities and facility-based physicians. Senate Bill 1742 also amends Insurance Code §843.3481 to require HMOs to provide certain information regarding any preauthorization requirements for health care services.The proposed amendments to §11.1610 also eliminate certain network adequacy review requirements for a health benefit plan written by an HMO for a contract with HHSC to provide services under CHIP, Medicaid, or with the State Rural Health Care System. HHSC conducts its own network adequacy reviews of HMOs with which it contracts that are duplicative of TDI’s review. The changes will conserve agency resources and reduce the regulatory burden and costs imposed on these HHSC program participants.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §11.1612 to update mandatory disclosure requirements for HMOs

CHAPTER 11. HEALTH MAINTENANCE ORGANIZATIONSSUBCHAPTER Q. OTHER REQUIREMENTS28 TAC §11.1612OVERVIEWThe Texas Department of Insurance proposes to amend 28 TAC §11.1612 (Mandatory Disclosure Requirements), concerning health maintenance organizations (HMOs). SUMMARY OF CHANGESAn amendment to §11.1612(a)(1) revises the provision to include a requirement that the provider listing describe a provider’s specialty, if any, to align with the requirements of Insurance Code §1451.504 and §1451.505, as amended by SB 1742. New §11.1612(h)(10) – (11) adds the new detailed facility and facility-based physician provider directory information requirements in Insurance Code §1451.504 as amended by SB 1742. Amendments to §11.1612(i) and §11.1612(j) capitalize the word “subsection” and “paragraph” to conform the rule text to TDI’s current style.BACKGROUND AND JUSTIFICATIONThe proposed amendments to §11.1612 implement SB 1742. Senate Bill 1742 amends Insurance Code Chapter 1451, Subchapter K to add more detailed requirements for health care provider directories, including a requirement for more information regarding facilities and facility-based physicians. Senate Bill 1742 also amends Insurance Code §843.3481 to require HMOs to provide certain information regarding any preauthorization requirements for health care services.

Texas Department of Insurance

Proposed Rules

Amending 28 TAC §26.301 to allow an employer group or association to establish a large employer health benefit plan, subject to certain conditions

CHAPTER 26. EMPLOYER-RELATED HEALTH BENEFIT PLAN REGULATIONSSUBCHAPTER C. LARGE EMPLOYER HEALTH INSURANCE REGULATIONS28 TAC §26.301OVERVIEWThe Texas Department of Insurance (TDI) proposes to amend 28 TAC §26.301, concerning the applicability, definitions, and scope of large employer health insurance regulations. SUMMARY OF CHANGESThe amendment to §26.301 implements Insurance Code Chapter 1501 by allowing an employer group or association that meets certain requirements to establish a large employer health benefit plan. That large employer plan will be subject to Insurance Code Chapter 1501 and 28 Texas Administrative Code Chapter 26, Subchapter C, rather than being regulated as an association plan under Insurance Code Chapter 1251, and both Subchapters A and C of 28 Texas Administrative Code Chapter 26.BACKGROUND AND JUSTIFICATIONNew §26.301(g) is added to increase the employee health insurance options available to Texas employers by permitting an employer group or association to qualify as a bona fide employer association entitled to buy a large employer health benefit plan under Insurance Code Chapter 1501.In March 2019 a federal court struck down parts of a rule issued by the U.S. Department of Labor (DOL). New York, et al. v. U.S. Dept. of Labor, et al., 363 F.Supp.3d 109 (D.D.C. 2019). The rule, 29 C.F.R. §2510.3-5, defined “Employer” for purposes of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1001, et seq. The court did not, however, strike down §2510.3-5(a), which expressly “does not invalidate” a series of DOL advisory opinions addressing circumstances in which the DOL will view a person as able to act directly or indirectly in the interest of direct employers in sponsoring an employee welfare benefit plan that is a group health plan. The advisory opinions identify criteria that, if satisfied, establish that an employer group or association is a bona fide employer association eligible to create one group health plan to cover all of the member employers’ employees. This is addressed in Department of Labor Advisory Opinions 2019-01A, 2017-02AC, 2005-25A, 2005-24A, and 2005-20A.To qualify as a bona fide employer association, an employer group or association must demonstrate that it satisfies the criteria for a bona fide employer association set out in the new text in §26.301, which is based on the DOL’s criteria. The DOL’s criteria require that employers that participate in a benefit program, either directly or indirectly, exercise control over the program, both in form and in substance, and that an organization that maintains such a plan is tied to the employers and employees that participate in the plan by some common economic or representational interest and genuine organizational relationship unrelated to the provision of benefits.An employer group or association can seek designation as a bona fide employer association through the issuer’s form filing, as is done for other association plans under 28 TAC Chapter 3, Subchapter A. The issuer’s form filing and documentation must include either a DOL advisory opinion specifically identifying it as a bona fide employer association or an attorney’s attestation with supporting documentation that the employer group or association meets the criteria established in §26.301(g).

State Board of Dental Examiners

Adopted Rules

Amending 22 TAC §102.1 to update certain fees

CHAPTER 102. FEES22 TAC §102.1The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §102.1, concerning fees. This amendment will increase certain fees to account for the agency changing to biennial renewals for dental licensure. This amendment will correct the fee as it pertains to patient protection and the Texas.gov internet portal. This amendment will reduce the fee collected for the prescription monitoring program. This amendment will add a late fee for the nitrous oxide monitoring fee and remove the nitrous oxide monitoring fee duplicate certificate fee. This amendment will increase the fee for peer assistance to the maximum amount allowed under §467.0041 of the Texas Health and Safety Code, and remove the fee from the rule. This amendment is adopted with no changes to the proposed text as published in the July 24, 2020, issue of the Texas Register (45 TexReg 5084), and will not be republished.

State Board of Dental Examiners

Adopted Rules

Amending 22 TAC §110.2 to require an anesthesia jurisprudence assessment before obtaining a sedation/anesthesia permit

CHAPTER 110. SEDATION AND ANESTHESIA22 TAC §110.2The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §110.2, concerning the requirements for obtaining a sedation/anesthesia permit. This amendment requires applicants to complete an anesthesia jurisprudence assessment prior to obtaining a sedation/anesthesia permit. This rule is being adopted to comply with the requirements of Texas Occupations Code §258.1551. This amendment is adopted without changes to the proposed text as published in the July 24, 2020, issue of the Texas Register (45 TexReg 5086). The rule will not be republished.

State Board of Dental Examiners

Adopted Rules

Amending 22 TAC §110.9 to require an anesthesia jurisprudence assessment as a condition of license renewal

CHAPTER 110. SEDATION AND ANESTHESIA22 TAC §110.9The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §110.9, concerning the requirements for renewing an anesthesia permit. This amendment requires permit holders to complete an anesthesia jurisprudence assessment once every five years. This rule is being adopted to comply with the requirements of Texas Occupations Code §258.1552. This amendment is adopted without changes to the proposed text as published in the July 24, 2020, issue of the Texas Register (45 TexReg 5087). The rule will not be republished.

Texas Health and Human Services Commission

In Addition

HHSC is submitting an amendment to the Youth Empowerment Services (YES) Waiver Program to require program providers to use electronic verification for in-home respite

The Texas Health and Human Services Commission (HHSC) is submitting to the Centers for Medicare & Medicaid Services (CMS) a request for an amendment to the Youth Empowerment Services (YES) waiver program, a waiver implemented under section 1915(c) of the Social Security Act. CMS has approved this waiver through March 31, 2023. The proposed effective date for the amendment is February 1, 2021. The proposed amendment does not affect the cost neutrality of the waiver.The request proposes to amend Appendix I to require YES program providers to use electronic visit verification for in-home respite. This requirement is being included to comply with §1903(l) of the Social Security Act, as added by the 21st Century Cures Act.

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