Texas Register September 27, 2019 Volume: 44 Number: 39

Texas Optometry Board

 

Proposed Rules

License renewal fees and extended renewal period

CHAPTER 273. GENERAL RULES22 TAC §§273.4, 273.8, 273.14The Texas Optometry Board proposes amendments to §§273.4, 273.8, and 273.14, primarily to set license renewal fees and implement Senate Bill 314, Regular Session, 85th Legislature, which authorized the Board to renew licenses for a two year period instead of the current one year period. Rule §273.4 amendments set fees for license renewal. The amendments to the fees will fund the agency’s required contribution to the costs of the Prescription Monitoring Program as required by House Bill 1, Regular Session, 86th Legislature, Article VIII, §7 and Article IX, §§18.30 and 18.36. License fees are amended to correspond to the two year period without an increase year-to-year. Late renewal fees are also adjusted according to statute. The retired license for charity work renewal fee has been reduced under the authority of Texas Occupations Code §112.051. The included fee for lists of optometrists is unchanged from the normal charge and the fee for official verifications has been increased to offset increased costs. Language regarding fees for FBI criminal history requests is unnecessary and has been removed.Rule §273.8 amendments also clarify that written notice of the impending license expiration may be “sent” rather than the current language of “mailed.” Rule §273.14 amendments also implement Senate Bill 1200, 86th Legislature, which provides an alternative process for licensing a military spouse.

---

Texas Optometry Board

Proposed Rules

Modifying continuing education requirements

CHAPTER 275. CONTINUING EDUCATION22 TAC §275.1, §275.2The Texas Optometry Board proposes amendments to Rules §275.1 and §275.2 to implement Senate Bill 314, Regular Session, 85th Legislature, which authorized the Board to renew licenses for a two year period instead of the current one year period. The amendments modify the continuing education requirements to fit the new license period.

---

Texas State Board of Pharmacy

Proposed Rules

Licenses for Military Service Members, Military Veterans, and Military Spouses

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS22 TAC §283.12The Texas State Board of Pharmacy proposes amendments to §283.12, concerning Licenses for Military Service Members, Military Veterans, and Military Spouses. The amendments, if adopted, establish procedures for a military spouse who is currently licensed in good standing by a jurisdiction with licensing requirements that are substantially similar to Texas’s requirements to obtain an interim pharmacist license, in accordance with Senate Bill 1200 of the 86th Legislative Session.

---

Texas State Board of Pharmacy

Proposed Rules

Remote Pharmacy Services (telepharmacy)

CHAPTER 291. PHARMACIESSUBCHAPTER G. SERVICES PROVIDED BY PHARMACIES22 TAC §291.121The Texas State Board of Pharmacy proposes amendments to §291.121, concerning Remote Pharmacy Services. The amendments, if adopted, clarify that a telepharmacy system located at a federally qualified health center may be located in a community in which a Class A or Class C pharmacy is located, in accordance with Senate Bill 670.

---

Texas State Board of Pharmacy

Proposed Rules

Drug Therapy Management by a Pharmacist under Written Protocol of a Physician

Pharmacists22 TAC §295.13The Texas State Board of Pharmacy proposes amendments to §295.13, concerning Drug Therapy Management by a Pharmacist under Written Protocol of a Physician. The amendments, if adopted, clarify that a federally qualified health center is a practice setting in which physician delegation to a pharmacist of specific acts of drug therapy management may occur, in accordance with House Bill 2425 of the 86th Legislative Session.

---

Texas State Board of Pharmacy

Proposed Rules

PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES (Continuing Education re: human trafficking)

CHAPTER 297. PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES22 TAC §297.8The Texas State Board of Pharmacy proposes amendments to §297.8, concerning Continuing Education Requirements. The amendments, if adopted, add a requirement for a human trafficking prevention course as specified in House Bill 2059 and correct grammatical errors.

---

Texas State Board of Pharmacy

Proposed Rules

PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES (Registration for Military Service Members, Military Veterans, and Military Spouses)

PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES22 TAC §297.10The Texas State Board of Pharmacy proposes amendments to §297.10, concerning Registration for Military Service Members, Military Veterans, and Military Spouses. The amendments, if adopted, establish procedures for a military spouse who is currently registered in good standing by a jurisdiction with registration requirements that are substantially similar to Texas’s requirements to obtain an interim pharmacy technician registration, in accordance with Senate Bill 1200.

---

Texas State Board of Pharmacy

Proposed Rules

Communication with Prescriber

CHAPTER 309. SUBSTITUTION OF DRUG PRODUCTS22 TAC §309.5The Texas State Board of Pharmacy proposes amendments to §309.5,concerning Communication with Prescriber. The amendments, if adopted, remove the section’s expiration date, in accordance with House Bill 1264.

---

Texas State Board of Pharmacy

Proposed Rules

Opioid prescriptions for the treatment of pain

CHAPTER 315. CONTROLLED SUBSTANCES22 TAC §315.3The Texas State Board of Pharmacy proposes amendments to §315.3, concerning Prescriptions. The amendments, if adopted, specify that opioid prescriptions for the treatment of pain may not exceed a 10-day supply or provide for a refill, in accordance with House Bills 2088 and 2174, remove the expiration date from the section’s title, and correct grammatical errors.

---

Texas State Board of Pharmacy

Proposed Rules

Pharmacy Responsibility – Electronic Reporting

CHAPTER 315. CONTROLLED SUBSTANCES22 TAC §315.6The Texas State Board of Pharmacy proposes amendments to §315.6, concerning Pharmacy Responsibility – Electronic Reporting. The amendments, if adopted, require a pharmacy that does not dispense any controlled substances during a seven day period to submit a zero report to the Prescription Monitoring Program and establish a procedure for requesting a waiver of the zero reporting requirement, in accordance with House Bill 2847.

---

Texas State Board of Pharmacy

Proposed Rules

Release of Prescription Data

CHAPTER 315. CONTROLLED SUBSTANCES22 TAC §315.11The Texas State Board of Pharmacy proposes amendments to §315.11, concerning Release of Prescription Data – Effective September 1, 2016. The amendments, if adopted, remove the effective date from the section title and clarify that a pharmacist may delegate access to prescription data to a pharmacist-intern or pharmacy technician trainee under the direction of the pharmacist, in accordance with House Bill 2847.

Texas State Board of Pharmacy

Proposed Rules

Access Requirements — mandatory Prescription Monitoring Program (PMP) database review

CHAPTER 315. CONTROLLED SUBSTANCES22 TAC §315.15The Texas State Board of Pharmacy proposes amendments to §315.15, concerning Access Requirements. The amendments, if adopted, change the effective date of mandatory Prescription Monitoring Program (PMP) database review before dispensing an opioid, benzodiazepine, barbiturate, or carisoprodol, in accordance with House Bill 3284, and clarify that the duty to consult the PMP database does not apply if the patient has a documented diagnosis of sickle cell disease, in accordance with Senate Bill 1564.

---

Texas Department of State Health Services

Proposed Rules

Designating incurable neurodegenerative diseases

PART 1. DEPARTMENT OF STATE HEALTH SERVICESCHAPTER 1. MISCELLANEOUS PROVISIONSSUBCHAPTER D. DESIGNATING INCURABLE NEURODEGENERATIVE DISEASES25 TAC §1.61The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes new §1.61, concerning designating incurable neurodegenerative diseases.BACKGROUND AND PURPOSEThe proposal is necessary to comply with House Bill (H.B.) 3703, 86th Legislature, Regular Session, 2019, which amended Texas Occupations Code, Chapter 169, and requires the Executive Commissioner of HHSC to adopt a rule designating incurable neurodegenerative diseases. The new rule designates incurable neurodegenerative diseases eligible for prescription of low-THC cannabis pursuant to Texas Occupations Code, Chapter 169. The Executive Commissioner charged rule development for the designation of incurable neurodegenerative diseases to DSHS.SECTION-BY-SECTION SUMMARYThe new rule includes a definition for an incurable neurodegenerative disease.The new rule includes a list of incurable neurodegenerative diseases eligible for prescription of low-THC cannabis pursuant to Texas Occupations Code, Chapter 169.The new rule provides a method to expand the list to include other incurable neurodegenerative diseases.

---

Texas Board of Chiropractic Examiners

Proposed Rules

Fee, License Applications, and Renewals

CHAPTER 72. FEES, LICENSE APPLICATIONS, AND RENEWALS22 TAC §72.19The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §72.19 (Fees) as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3498). The rule will not be republished.The Board will adopt a new §72.19 in a separate rulemaking action. The purpose of the Board’s repeal and replacement of the rule is to remove fees related to registering radiologic technologists as the Board no longer has jurisdiction over that profession under Senate Bill (SB) 674 (85th Legislature, Regular Session) and to raise the two late renewal fees (by $15 and $30, respectively) to make them conform to Occupations Code §201.354(d)

---

Texas Board of Chiropractic Examiners

Proposed Rules

Fee, License Applications, and Renewals

CHAPTER 72. FEES, LICENSE APPLICATIONS, AND RENEWALS22 TAC §72.19The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §72.19 (Fees) as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3498). The rule will not be republished.The Board will adopt a new §72.19 in a separate rulemaking action. The purpose of the Board’s repeal and replacement of the rule is to remove fees related to registering radiologic technologists as the Board no longer has jurisdiction over that profession under Senate Bill (SB) 674 (85th Legislature, Regular Session) and to raise the two late renewal fees (by $15 and $30, respectively) to make them conform to Occupations Code §201.354(d)

---

Texas Board of Chiropractic Examiners

Proposed Rules

Out-of-Facility Practice

CHAPTER 75. BUSINESS PRACTICES22 TAC §75.2The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §75.2 (Out-of-Facility Practice) without changes as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3500). The rule will not be republished.The Board is replacing this rule with new 22 TAC §75.2 (Place of Business) in a separate rulemaking action. The new rule removes references to chiropractic facilities and clarifies what information a licensee must maintain about locations where services are provided.

---

Texas Board of Chiropractic Examiners

Proposed Rules

Place of Business; Out-of-Facility Practice

CHAPTER 75. BUSINESS PRACTICES22 TAC §75.2The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §75.2 (Place of Business) as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3501). The rule will not be republished. The Board is repealing the current rule (Out-of-Facility Practice) in a separate rulemaking action.The rule removes references to chiropractic facilities, over which the Board no longer has any jurisdiction following passage of the Board’s Sunset bill (Senate Bill 304) in the 85th Regular Legislative Session. The rule clarifies what information a licensee must maintain about locations where services are provided, including those provided at a licensee’s residence or by a licensee operating a mobile-only practice. Under the rule, a licensee must keep the required location information for six years.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Mandatory Display of License

CHAPTER 75. BUSINESS PRACTICES22 TAC §75.6The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §75.6 (Mandatory Notice to Public) as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3502). The rule will not be republished.The Board is adopting a new §75.6 in a separate rulemaking action. The replacement rule updates language for clarity. It also includes a copy of the notice (as required by Occupations Code §201.203) as an attached graphic for licensees to print, thus ensuring uniformity. The replacement rule removes language about a licensee’s obligation to display a chiropractic licensee; that language will be moved to new stand-alone 22 TAC §75.7 (Mandatory Display of License).

---

Texas Board of Chiropractic Examiners

Adopted Rules

Mandatory Display of License

CHAPTER 75. BUSINESS PRACTICES22 TAC §75.7The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §75.7 (Mandatory Display of License) with no changes to the proposed text as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3503). The rule will not be republished.The purpose is to move and update existing language from 22 TAC §75.6 (Mandatory Notice to Public) about a licensee’s obligation to prominently display a current chiropractic license into a stand-alone rule. The new rule will make it easier for licensees and the public to find the information.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Establishing basic sanitary and safety standards for locations where chiropractic is practiced

CHAPTER 75. BUSINESS PRACTICES22 TAC §75.8The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §75.8 (Unsafe and Unsanitary Conditions) with no changes to the proposed text as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3504). The rule will not be republished.The purpose of the new rule is to establish basic sanitary and safety standards for locations where chiropractic is practiced. This rule-making is also in response to a recommendation made by the Texas Sunset Commission as part of its review of agency policies, procedures, and operations.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Removal or expunction of disciplinary records

CHAPTER 79. UNPROFESSIONAL CONDUCT22 TAC §79.3The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §79.3 (Disciplinary Records) as published in the May 31, 2019, issue of the Texas Register (44 TexReg 2694). The rule will not be republished.The Board has determined that the rule exceeds the Board’s statutory authority to remove or expunge the records of final disciplinary actions taken by the Board.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Duty to Respond to Complaint

CHAPTER 80. COMPLAINTS22 TAC §80.1The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §80.1 (Duty to Respond to Complaint) as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3505). The rule will not be republished.The Board is replacing this rule with new 22 TAC §80.1 in a separate rulemaking action. The new rule removes references to chiropractic facilities and makes the rule more readable.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Duty to Respond to Complaint

22 TAC §80.1The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §80.1 (Duty to Respond to Complaint) without changes as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3505). The rule will not be republished.The Board is repealing the current rule in a separate rulemaking action. The new rule is intended to remove previous references to chiropractic facilities, over which the Board no longer has jurisdiction following passage of the Board’s Sunset bill (Senate Bill 304) in the 85th Regular Legislative Session. The new rule also removes unnecessary language and makes it more readable.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Nonreporting minor administrative violations to national databases

CHAPTER 80. COMPLAINTS22 TAC §80.3The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §80.3 (Disciplinary Guidelines) as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3508). The rule will not be republished.The Board is replacing this rule with new 22 TAC §80.3 in a separate rulemaking action. The new rule is intended to make clear when the Board will not report minor administrative violations to national databases. The new rule also removes unnecessary language for clarity.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Communication with patients while licensee is under suspension

CHAPTER 80. COMPLAINTS22 TAC §80.3The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §80.3 (Disciplinary Guidelines) with one non-substantive change as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3509). The rule will be republished.The adopted rule adds language to subsection (e)(2) that clarifies when a licensee under suspension may communicate with patients. The Board is repealing the current rule in a separate rulemaking action. The new rule is intended to make clear when the Board will not report minor administrative violations to national databases. The new rule also removes unnecessary language to make it more readable.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Expert review process

CHAPTER 80. COMPLAINTS22 TAC §80.5The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §80.5 (Expert Review Process) as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3510). The rule will not be republished.The Board is replacing this rule with new 22 TAC §80.5 in a separate rulemaking action. The new rule requires the Board to provide an expert review report to a licensee and an opportunity to respond before the report is considered by the Board’s enforcement committee. The new rule also makes non-substantive changes for clarity.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Expert review process

CHAPTER 80. COMPLAINTS22 TAC §80.5The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §80.5 (Expert Review Process) with non-substantive changes as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3511). The rule will be republished.The Board has added language to clarify that the Board may select professionals in other disciplines to provide an expert review during an investigation. The new rule requires the Board to provide an expert review report to a licensee and an opportunity to respond before the report is considered by the Board’s enforcement committee. The new rule also makes non-substantive changes for clarity. The Board is repealing the current rule in a separate rulemaking action.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Undercover investigations

CHAPTER 80. COMPLAINTS22 TAC §80.6The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §80.6 (Undercover Investigations) as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3512). The rule will not be republished.The Board is replacing this rule with new 22 TAC §80.6 in a separate rulemaking action. The new rule makes non-substantive changes to the text for clarity.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Cease and desist orders

CHAPTER 80. COMPLAINTS22 TAC §80.7The Texas Board of Chiropractic Examiners (Board) adopts the repeal of 22 TAC §80.7 (Cease and Desist Orders) as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3513). The rule will not be republished.The Board is replacing this rule with new 22 TAC §80.7 in a separate rulemaking action. The new rule makes non-substantive changes to the text for clarity.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Cease and desist orders

CHAPTER 80. COMPLAINTS22 TAC §80.7The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §80.7 (Cease and Desist Orders), without changes to the text as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3514). The rule will not be republished.The adopted rule makes non-substantive changes to the text for clarity.

---

Texas Board of Chiropractic Examiners

Adopted Rules

Temporary License Suspension

CHAPTER 80. COMPLAINTS22 TAC §80.9The Texas Board of Chiropractic Examiners (Board) adopts new 22 TAC §80.9 (Temporary License Suspension) with non-substantive changes to the proposed text as published in the July 12, 2019, issue of the Texas Register (44 TexReg 3515). The rule will be republished.The rule transfers existing language concerning the Board’s emergency license suspension procedures (authorized by Occupations Code §201.507) from 22 TAC §80.2 (Complaint Procedures) into a new stand-alone rule. The new rule retains the basic procedures currently in §80.2 and removes superfluous language for clarity. The new rule also makes clear the only purpose of the 14-day hearing is to determine whether there are reasonable grounds for the temporary suspension to remain in effect.

---

Texas Health and Human Services Commission

In Addition

Notice of hearing: Medicaid Community Hospice payment rates.

Notice of Public Hearing on Proposed Medicaid Payment Rates for Medicaid Community HospiceHearing. The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on October 2, 2019, at 9:30 a.m., to receive public comments on proposed Medicaid Community Hospice payment rates.The public hearing will be held in the Public Hearing Room of the Brown-Heatly Building located at 4900 N. Lamar Boulevard, Austin, Texas. Entry is through security at the main entrance of the building, which faces Lamar Boulevard. Free parking is available in front of the building and in the adjacent parking garage. HHSC also will broadcast the public hearing; the broadcast can be accessed at https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings. The broadcast will be archived and can be accessed on demand at the same website. 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.Proposal. HHSC proposes to increase payment rates for Medicaid Community Hospice for routine home, continuous home, inpatient respite, and general inpatient care services to be effective October 1, 2019.

---

Texas Health and Human Services Commission

In Addition

Notice of hearing: Proposed Medicaid Payment Rate for the Truman W. Smith Pediatric Care Facility

Hearing. The Texas Health and Human Services Commission (HHSC) will conduct a public hearing October 2, 2019, at 9:00 a.m., to receive comment on Proposed Medicaid Payment Rate for the Truman W. Smith Pediatric Care Facility.The public hearing will be held in the Brown-Heatly Building Public Hearing Room, located at 4900 North Lamar Boulevard, Austin, Texas, 78751. Entry is through security at the main entrance of the building, which faces Lamar Boulevard. HHSC will broadcast the public hearing. Persons watching remotely can submit written comments. The broadcast can be accessed at https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings, and it will be archived for access on demand at the same website. The public hearing will be held in compliance with Texas Human Resources Code §32.0282, which requires public notice of and hearings on proposed Medicaid reimbursements.Proposal. HHSC proposes to increase the daily payment rate for all pediatric care facility special reimbursement class services to $296.63, effective retroactive to September 1, 2019. The current payment rate is $291.17 per day.

---

Texas Health and Human Services Commission

In Addition

Notice of intent to submit transmittal to the Texas State Plan for Medical Assistance re: negotiation of supplemental rebate agreements for pharmaceuticals involving value-based purchasing arrangements with drug manufacturers

In Addition

Amendment Adding a Separate Listing for Noroxymorphone in Schedule II

Amendment Adding a Separate Listing for Noroxymorphone in Schedule IIThe Drug Enforcement Administration issued a rule amending the Code of Federal Regulations (CFR), specifically section 1308.12(b)(1), by adding a separate listing for noroxymorphone. Noroxymorphone already is included as a Schedule II controlled substance because 21 CFR 1308.12(b)(1) controls any salt, compound, derivative, or preparation of opium and opiates. Accordingly, noroxymorphone has been controlled as a derivative of the listed substances and this rule will not result in adding any new substances into the schedules. Listing noroxymorphone does not alter its status as a Schedule II controlled substance. This rule was published in the Federal Register, Volume 84, Number 159, pages 41913-41914. The effective date of the rules is August 16, 2019. This action is taken for the following reason:-DEA is amending the CFR to reflect the current practice of using the DEA Controlled Substances Code Number 9668 for noroxymorphone.Pursuant to Section 481.034(g), as amended by the 75th legislature, of the Texas Controlled Substances Act, Health and Safety Code, Chapter 481, at least thirty-one days have expired since notice of the above referenced actions were published in the Federal Register. In the capacity as Commissioner of the Texas Department of State Health Services, John Hellerstedt, M.D., does hereby order that noroxymorphone be listed separately from other substances in Schedule II.