The following is a compilation of the health care related proposed rules in the March 11 through April 1 editions of the Texas Register. Click the links to the rules below for more information on how to submit public comment and meeting dates/times.

Emergency Rules

TEXAS HEALTH AND HUMAN SERVICES COMMISSION

COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING – 26 TAC §500.1

  • The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis 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.

Proposed Rules

DEPARTMENT OF STATE HEALTH SERVICES

EMERGENCY MEDICAL CARE 25 TAC §157.41

  • The proposed repeal of the section is required to comply with SB 199, related to the usage and education requirement for automated external defibrillators for public access defibrillation. SB 199 removed the rulemaking authority from the Executive Commissioner concerning training requirements and revised the requirement for the SBEC to adopt rules for automated external defibrillator training.

TEXAS HEALTH AND HUMAN SERVICES COMMISSION

MEDICAID MANAGED CARE 1 TAC §353

  • The Executive Commissioner of the HHSC proposed amendments concerning Quality Incentive Payment Program for Nursing Facilities on or after September 19, 2019. Additionally, amendments relating to Quality Metrics for the Quality Incentive Payment Program for Nursing Facilities, Comprehensive Hospital Increase Reimbursement Program for program periods, Quality Metrics and Required Reporting Used to Evaluate the Success of the Comprehensive Hospital Increase Reimbursement Program, Texas Incentives for Physicians and Professional Services, Rural Access to Primary and Preventive Services Program, Quality Metrics for Rural Access to Primary and Preventive Services Program, Directed Payment Program for Behavioral Health Services, and Quality Metrics for the Directed Payment Program for Behavioral Health Services were proposed.
  • The amendments were proposed due to approval requirements by the Centers for Medicare and Medicaid Services (CMS) which require HHSC to make modifications related to proposed state-directed payment programs (DPPs) for 2022. Texas has pursued approval of 5 DPPs: QIPP, CHIRP, TIPPS, RAPPS, and DPP BHS. CMS stated the DPPs were not approvable, specifically noting the aggregate size of the proposed programs and CMS’s belief that the amounts were not actuarially sound. November 2021, HHSC and CMS agreed upon four identified topic areas, but rule amendments are necessary to reflect those agreements. Without agreed changes, CMS will not approve the DPPs and the programs will cease to operate or will not be implemented. Information on the DPPs Reconciliation, Program Size, Quality Improvement Measures, Evaluation, and Non-Federal Share is available on the original March 18th Issue.
  • CMS stated that they believed evaluations of the programs should isolate exclusively quality goal advancement for Medicaid managed care beneficiaries and not all Medicaid beneficiaries. Additionally, an amendment mentions clarification that the provider must provide at least one Medicaid service to a Medicaid managed care client; provides the monthly payment will be paid as a uniform rate increase for Component One and Two; provides that the reconciliation will occur 120 days after the last day of the program period based on actual utilization; deletes the 10 percent trigger threshold for the reconciliation; and provides that providers must report quality data.
  • CMS stated that they believed that the resulting proposed programs size and payments to providers on a class basis were not attainable. Texas agreed to cap ACIA increases so a class of providers could receive in aggregate only 90 percent of the classes’ ACR gap amount. DPP BHS rules were amended to clarify the eligible providers for the Program Period Sept. 1, 2021-Aug. 31, 2022, and eligible providers for Program Periods on or after Sept. 1, 2022. Amendments proposed details a reporting requirement for quality date, and failure to meet any condition of participation will result in removal of the provider from the program and recoupment of all funds previously paid during the program period. Other details surrounding providers relates to updated definitions, requirements for program participation, and data reporting.

MEDICAID HOSPICE PROGRAM – 26 TAC §266

  • Proposed new Chapter 266 will make HHSC’s Medicaid Hospice Program rules consistent with the federal Medicare hospice regulations, add definitions used in the chapter, include details of utilization review policy requirements, such as describing what the individualized plan of care must include, types of required documentation that a hospice must maintain, and specifics regarding the certification of terminal illness, and update standards to protect the health and safety of individuals receiving hospice care. The proposed new rules in Chapter 266 incorporate the federal rate changes in Title 42, Code of Federal Regulations (42 CFR), Part 418, Subpart G, Payment for Hospice Care, that HHSC implemented on January 1, 2016. These changes allow providers to be paid at a higher rate during the first 60 days of routine home care and during the final seven days. Additionally, the proposed new rules create an annual aggregate cap and align it with the federal fiscal year. The proposed new rules also align hospice election periods to those in 42 CFR Part 418, Subpart B, Duration of hospice care coverage – Election periods. The proposed new rules also include hospice documentation requirements, recoupment of payments, and the option to request an informal review of and appeal proposed recoupment.

MINIMUM STANDARDS FOR LISTED FAMILY HOMES – 26 TAC §742.508

  • The proposal intends to implement the portion of Senate Bill (S.B.) 225, 87th Legislature, Regular Session, 2021, that amended Chapter 42, Human Resources Code by adding Section 42.04291. This new section requires the HHSC Executive Commissioner to establish standards for listed family homes and registered and licensed child-care homes for the visual and auditory supervision of an infant engaged in time on the infant’s stomach while awake (that is, tummy time). To meet this legislative requirement, HHSC Child Care Regulation is proposing a new rule for listed family homes that specifies supervision requirements for when an infant is engaged in tummy time activities.