Below is a spotlight on the emergency, proposed, and adopted rules in the May 20th and May 27th editions of the Texas Register.

Education

TEXAS EDUCATION AGENCY

Proposed Rules

SCHOOL DISTRICTS – 19 TAC §61.1011

  • The TEA proposes an amendment concerning the formula transition grant. The proposed amendment would extend certain provisions related to the average daily attendance hold harmless to the 2020-2021 school year. The proposed amendment would extend to the 2020-2021 school year the provision that allows exclusion of any reduction in ADA arising from the application of Elementary and Secondary School Emergency Relief (ESSER) funding toward the ADA hold harmless. The proposed amendment would also remove language providing alternative provisions between the 2019-2020 and the 2020-2021 school years. Sections would be amended to update the term “students with limited English proficiency” to “emergent bilingual students” in alignment with SB 2066 87(R). A new section would be added to exclude school district entitlements for certain students under Texas Education Code (TEC), §48.281, in calculations for the formula transition grant. Written comment on this proposal may be submitted until June 19, 2022.

Adopted Rules

SCHOOL DISTRICTS – 19 TAC §61.3

  • The SBOE adopts new rules concerning school safety training for school board members. The new section is adopted without changes to the proposed text as published in the February 25, 2022, issue of the Texas Register. The new rule reflects changes made by HB 690 87(R) to the SBOE’s duty to provide training courses for independent school district trustees. No public comments were received on this proposal. The effective date of this rule is May 31, 2022.

ASSESSMENT – 19 TAC §§101.2001, 101.2003, 101.2005 – 101.2007, 101.2009, 101.2011, 101.2015, 101.2017, 101.2019

  • The TEA adopts the repeal of §§101.2001, 101.2003, 101.2005-101.2007, 101.2009, 101.2011, 101.2015, 101.2017, and 101.2019, concerning grade advancement and accelerated instruction. The repeals are adopted without changes to the proposed text as published in the January 21, 2022, issue of the Texas Register. The adopted rule action implements HB 4545 (R) which modified requirements related to accelerated instruction. The TEA received public comment from Texas Public Charters School Association. A summary of their comments and the agency’s response can be found here. The effective date of this change is May 31, 2022.

TEACHER RETIREMENT SYSTEM OF TEXAS

Adopted Rules

MEMBERSHIP CREDIT – 34 TAC §25.21

  • The TRS adopts amendments relating to Compensation Subject to Deposit and Credit without changes to the proposed text as originally published in the January 7, 2022, issue of the Texas Register. Amendments aim to conform with legislation passed during the regular session of the 87th Legislature. Specifically, HB 1525 amended Government Code to provide that any increased compensation paid to a teacher by a school district using funds received by the district under the teacher incentive allotment is creditable compensation for TRS purposes. No public comments on this proposal were received. The effective date of this amendment is May 25, 2022.

Health Care

HEALTH AND HUMAN SERVICES COMMISSION

Emergency Rules

EXEMPTIONS FROM REGULATION – 26 TAC §745.115 and 26 TAC §745.10301

  • The HHSC is renewing the effectiveness of emergency amended §745.115 and 26 TAC §745.10301 for a 60-day period. The text of the emergency rules were originally published in the January 21, 2022, issue of the Texas Register.

Proposed Rules

LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS – 26 TAC §550.108

  • The Executive Commissioner of the HHSC proposes amendments concerning Change of Ownership License Application Procedures and Issuance. The proposal authorizes HHSC to issue a temporary change of ownership license in the name of the new owner of a prescribed pediatric extended care center (PPECC) and to complete a health inspection of the center while the new owner holds this temporary change of ownership license. The proposed amendment also authorizes HHSC to extend the duration of the temporary change of ownership license to allow HHSC additional time to perform the health inspection of the center. These proposed amendments also update the licensure process to reflect the transition from paper applications to the use of the online licensure portal called Texas Unified Licensure Information Portal (TULIP) and to describe other processes relating to licensure and change of ownership. The proposed amendments also add provisions to address the process for a license holder to change its name or add an owner with a disclosable interest when the center does not undergo a change of ownership. Written comment on this proposal may be submitted until June 19, 2022.

INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS – 26 TAC §551.16 and §551.214

  • The Executive Commissioner of the HHSC proposes amendments concerning Change of Ownership and Notice of Changes and concerning Protection of Residents After Report of Abuse, Neglect, and Exploitation, to correct a clerical error in the existing Texas Administrative Code. The proposal authorizes HHSC to issue a temporary change of ownership license in the name of the new owner of an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) and to complete a health inspection of the facility while the new owner holds this temporary change of ownership license. The proposed amendment also authorizes HHSC to extend the duration of the temporary change of ownership license to allow HHSC additional time to perform the health inspection of the facility. The proposed amendments also update the licensure process relating to change of ownership and make non-substantive changes to add clarity, improve consistency in the usage of terms, change the lettering of the subsections to account for the addition of provisions, and make edits to improve readability. Written comment on this proposal may be submitted until June 19, 2022.

LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES – 26 TAC §553.35

  • The Executive Commissioner of the HHSC proposes amendments concerning change of Ownership and Notice of Changes. The proposal authorizes HHSC to issue a temporary change of ownership license in the name of the new owner of an assisted living facility (ALF) and to complete a health inspection while the new owner holds this temporary change of ownership license. The proposed amendment also authorizes HHSC to extend the duration of the temporary change of ownership license to allow HHSC additional time to perform the health inspection of the ALF. The proposed amendments also allow HHSC, under certain circumstances, to waive the requirement for an applicant to submit a complete application at least 30 days before the anticipated date of the change of ownership. The proposed amendments also update the licensure process relating to change of ownership and addresses the process for a license holder to change its name when the facility does not undergo a change of ownership and makes a number of non-substantive changes. Written comment on this proposal may be submitted until June 19, 2022.

DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS – 26 TAC §559.16

  • The Executive Commissioner of the HHSC proposes amendments concerning Change of Ownership and Notice of Changes. The proposal authorizes HHSC to issue a temporary change of ownership license in the name of the new owner of a day activity and health service (DAHS) facility and to complete a health inspection of the facility while the new owner holds this temporary change of ownership license. The proposal also authorizes HHSC to extend the duration of the temporary change of ownership license to allow HHSC additional time to perform the health inspection of the DAHS facility. The proposed amendments also update the licensure process to reflect the transition from paper applications to the use of the online licensure portal called the Texas Unified Licensure Information Portal (TULIP) and to clarify other processes relating to licensure and change of ownership. The proposed amendments also address the process for a license holder to change its name when the facility does not undergo a change of ownership and makes a number of non-substantive changes. Written comment on this proposal may be submitted until June 19, 2022.

LICENSING – 26 TAC §745.115, §745.139 and 26 TAC §745.8605

  • The Executive Commissioner of the HHSC proposes amendments concerning: what programs regulated by other governmental entities are exempt from licensing regulations, licensing under a combination of exempt and regulated programs, and when can licensing recommend or impose an enforcement action. The emergency rule and rule amendment were adopted to comply with Governor Abbott’s direction on May 31, 2021 to discontinue state licensing of certain child-care facilities that provide care or shelter to undocumented immigrants. HHSC adopted an emergency amendment to clarify that a program that provides care exclusively to unlawfully present individuals is exempt from licensure and regulation by HHSC. HHSC also adopted an emergency rule to require a General Residential Operation either to cease providing care or shelter to an unlawfully present individual by August 30, 2021, or to surrender its license to HHSC. The emergency rules also provide that child-care programs that are exempt from licensing and regulation by HHSC must be operated separately from GROs that are licensed or certified by HHSC and outlines the enforcement actions HHSC may take if a GRO provides care or shelter to an unlawfully present individual after August 30, 2021. These rules substantially adapt the content of the emergency rules into regular rules. Written comment on this proposal may be submitted until June 19, 2022.

MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS – 26 TAC §748.7 and 26 TAC §§748.81, 748.83, 748.85

  • The Executive Commissioner of the HHSC proposes amendments concerning how regulations apply to family residential centers, who applies, providing shelter an unlawfully present individual, and requirements operating a general residential operation while an exempt program separately provides care for an unlawfully present individual. Based on the declared disaster, HHSC adopted an emergency rule to require a GRO either to cease providing care or shelter to an unlawfully present individual by August 30, 2021, or to surrender its license to HHSC. The emergency rules also provide that child-care programs that are exempt from licensing and regulation by HHSC must be operated separately from GROs that are licensed or certified by HHSC and outlines the enforcement actions HHSC may take if a GRO provides care or shelter to an unlawfully present individual after August 30, 2021. These rules substantially adapt the content of the emergency rules into regular rules. Written comment on this proposal may be submitted until June 19, 2022.

Withdrawn Rules
LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC – 26 TAC §570.1 – 570.807

Adopted Rules

MEDICAID MANAGED CARE – 1 TAC §§353.1302, 353.1304, 353.1306, 353.1307, 353.1309, 353.1311, 353.1315, 353.1317, 353.1320, 353.1322

  • The Executive Commissioner of the HHSC adopts amendments concerning: Quality Incentive Payment Program for Nursing Facilities before/on/or after September 1, 2019, Comprehensive Hospital Increase Reimbursement Program for program periods on or after September 1, 2021, Quality Metrics and Required Reporting Used to Evaluate the Success of the Comprehensive Hospital Increase Reimbursement Program, Texas Incentives for Physicians and Professional Services, Quality Metrics for the Texas Incentives for Physicians and Professional Services Program, 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. During the comment period HHSC received two comments from the University of Texas at Southwestern Medical Center (UTSW) and the Texas Medical Association. Summaries of the comments and responses from the agency can be found here. The effective date of these amendments is May 31, 2022.

LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES – 26 TAC §558.303

  • The Executive Commissioner of the HHSC adopts an amendment concerning Standards for Possession of Sterile Water or Saline, Certain Vaccines or Tuberculin, and Certain Dangerous Drugs. The amendment is adopted without changes to the proposed text as published in the November 12, 2021, issue of the Texas Register. During the comment period, HHSC received two comments from the Texas and New Mexico Hospice Organization and the Texas Nurse Practitioners Association. Summaries of the comments and responses from the agency can be found here. The effective date of this amendment is June 1, 2022.

DEPARTMENT OF STATE HEALTH SERVICES

Adopted Rules

PATIENT CARE–MENTAL HEALTH SERVICES – 25 TAC §§405.261 – 405.263, 405.266, 405.268, 405.269, 405.272, 405.274 – 405.276 and 25 TAC §§405.264, 405.265, 405.267, 405.270, 405.271, 405.273, 405.277, 405.279

  • The Texas Health and Human Services Commission (HHSC) adopts amendments relating to Deaths of Persons Served by TXMHMR Facilities or Community Mental Health and Mental Retardation Centers. The adopted amendments reflect internal agency practices that are being updated at the discretion of the State Hospital System Administration. The adopted amendments are also intended to implement the Patient Safety Quality Improvement Act and related agency regulations by the United States Department of Health and Human Services. The proposed amendments also remove sections, references, and language related to the internal process by which reviews of deaths in state hospitals occur. During the comment period, the Department of State Health Services received three comments from Disability Rights Texas. Summaries of the comments and responses from the agency can be found here. The effective date of this amendment is May 26, 2022.

Energy

PUBLIC UTILITY COMMISSION OF TEXAS

Adopted Rules

SUBSTANTIVE RULES APPLICABLE TO WATER AND SEWER SERVICE PROVIDERS – 16 TAC §24.3

  • The PUC adopted amendments relating to the definitions for terms in Chapter 24. The commission adopts these rules with changes to the proposed rules as published in the November 12, 2021, issue of the Texas Register. Changes include a more comprehensive definition of “affected county” and “inactive connection”; the deletion of “temporary rate for service provided for a nonfunctioning system;” and changes to clarify the language of other definitions in Chapter 24. The rule will be republished. The Commission received comments on the proposed rule from Alliance for Retail Markets (ARM); Chargepoint, EVgo, and Tesla (collectively, Joint EVSE Providers); Office of Public Utility Counsel (OPUC); Texas Caterpillar Dealers Legislative Council (TCDLC); Texas Electric Cooperatives (TEC); and Texas Public Power Association (TPPA). Summaries of the comments and the agency’s response can be found here. The effective date for this proposal is June 1, 2022.

SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS – 16 TAC §25.5

  • The PUC adopted amendments relating to definitions for Chapter 25. The commission adopts this rule with changes to the proposed rule as published in the November 12, 2021, issue of the Texas Register. Changes revise definitions to comport with changes made by HB 1572 and SB 1202 87(R). Specifically, these changes relate to amendments to PURA §31.002(4-b), (6), and (17); PURA §31.0021; PURA §37.001(3); and PURA §37.002. The rule will be republished. The commission received comments on the proposed rule from Alliance for Retail Markets (ARM); Chargepoint, EVgo, and Tesla (collectively, Joint EVSE Providers); Office of Public Utility Counsel (OPUC); Texas Caterpillar Dealers Legislative Council (TCDLC); Texas Electric Cooperatives (TEC); and Texas Public Power Association (TPPA). Summaries of the comments and the agency’s response can be found here.

Tax Administration

COMPTROLLER OF PUBLIC ACCOUNTS

Proposed Rules

TAX ADMINISTRATION – 34 TAC §3.9

  • The Comptroller of Public Accounts proposes amendments concerning electronic filing of returns and reports, and the electronic transfer of certain payments by certain taxpayers. The comptroller amends the section to reflect changes made in the Tax Code by SB 586 87(R), effective September 1, 2021. The legislation closes the “distributor loophole” in the Tax Code, relating to off-highway vehicles (OHVs, commonly known as all-terrain vehicles or ATVs) by including OHV distributors, not just OHV manufacturers, in the statute’s reporting requirement. The proposed amendment conforms the rule to current statute. The proposed amendment also re-numbers subsequent clauses. Written comment on this proposal may be submitted until June 26, 2022.

Other

TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION

Proposed Rules

DEATH BENEFITS DEATH AND BURIAL BENEFITS – 28 TAC §132.17

  • The Texas Department of Insurance, Division of Workers’ Compensation (DWC) proposes amendments concerning denial, dispute, and payment of death benefits. The proposed amendment is necessary to clarify an insurance carrier’s deadlines to file disputes on eligibility of death benefits, and on the compensability of a death claim, both specified under the Labor Code. The proposed amendments clarify that the timeframes to pay or dispute are based on the date of injury and make editorial changes to avoid confusion. The proposed amendments also correct grammar errors in the current rule text and update rule language to conform the section to the agency’s current style. Examples of these amendments include changing “shall” to “must,” updating “Commission” to “division,” and adding “insurance” before “carrier.” Written comment on this proposal may be submitted until June 19, 2022.