Below is a spotlight on the emergency, proposed, and adopted rules in the August 5th and August 12th editions of the Texas Register.
Healthcare:
HEALTH AND HUMAN SERVICES COMMISSION
Emergency Rules:
COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING – 26 TAC §500.4
- The Executive Commissioner of the Texas Health and Human Services Commission adopts on an emergency basis COVID-19 Emergency Health Care Facility Licensing, a new amendment, concerning an emergency rule in response to COVID-19 in order to permit a licensed hospital to participate in the Centers for Medicare & Medicaid Services Acute Hospital Care at Home Program to expand hospital capacity in response to the COVID-19 pandemic. HHSC finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for Participating in the Centers for Medicare and Medicaid Services Acute Hospital Care at Home Program During the COVID-19 Pandemic. To protect hospital patients and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to temporarily permit a currently licensed hospital to participate in the CMS hospitals at home program to expand hospital capacity in response to the COVID-19 pandemic.
Proposed Rules:
- HHSC proposes a new chapter concerning the Deaf Blind with Multiple Disabilities Program. Federal Regulations require home and community-based settings in programs authorized by the Social Security Act to have certain qualities, including being integrated in and supporting full access of individuals to the greater community. The Centers for Medicare & Medicaid Services is requiring that states comply with these regulations by March 17, 2023. In accordance with Rider 21 in the 2020-21 General Appropriations Act, HHSC developed a plan to replace day habilitation provided in the Home and Community-Based Services, Texas Home Living, and Deaf Blind with Multiple Disabilities Programs with individualized skills and socialization. Rider 23 in the 2022-2023 GAA authorized funding for the provision of individualized skills and socialization in the HCS, TxHmL, and DBMD Programs. The proposed rules describe the two types of individualized skills and socialization, on-site individualized skills and socialization and off-site individualized skills and socialization and require that both types be provided by an individualized skills and socialization provider. The rules requiring a provider of individualized skills and socialization to be licensed in accordance. The rules will require an individualized skills and socialization provider to be licensed as a day activity and health services facility with a special designation for individualized skills and socialization. They additionally describe the requirements for an individualized skills and socialization provider including a requirement that both on-site and off-site individualized skills and socialization be made available to individuals and that staffing ratios are met. The proposed rules also discontinue day habilitation effective March 1, 2023. A public hearing to receive comments on the proposal will be held virtually on September 7, 2022 from 8:00 a.m. – 12:00 p.m. via GoToWebinar. Written public comment can be submitted until September 11, 2022.
MEDICAID HEALTH SERVICES – SCHOOL HEALTH AND RELATED SERVICES – 1 TAC §354.1341, §354.1342
- HHSC proposes amendments concerning Benefits and Limitations and concerning Conditions for Participation. The School Health and Related Services program is jointly administered by HHSC and the Texas Education Agency. The SHARS program allows independent school districts and public charter schools to obtain Medicaid reimbursement for the provision of certain direct medical and transportation services to Medicaid enrolled students who receive benefits to meet federal and state laws guaranteeing the students a free and appropriate public education. Currently SHARS must be prescribed in a student’s individualized education program as required by the TEC and implemented through Commissioner of Education rule. The proposed rule amendment adds text to align with the implementation of HB 706 86(R) which amended the TEC to permit SHARS providers to bill and receive reimbursement for allowable audiology services provided to Medicaid-eligible children as prescribed in a plan created under the Rehabilitation Act of 1973. The bill requires HHSC to adopt rules necessary to implement Texas Education Code Section (redesignated by HB 3607 87(R)) in consultation with TEA and as approved by CMS. The proposed amendment implements HB 2658 87(R). HB 2658 added to the Human Resources Code. The proposed amendment will restate and clarify the federal requirement to obtain parental consent to access a student’s Medicaid in order to receive Medicaid reimbursement for all SHARS services. HHSC is also proposing language to align these rules concerning Reimbursement Methodology for School Health and Related Services and other clarifying language. Written comment on this amendment may be submitted until September 4, 2022.
- HHSC proposes amendments relating to Definitions, Criteria for Licensing, Site and Location for all Assisted Living Facilities, Human Resources, and Admission Policies and Procedures. The proposed amendments aims to implement HB 1681 87(R) which prohibits construction of assisted living facilities in a 100-year flood plain in counties of more than 3.3 million residents. The amendment aims to implement SB 271 87(R) which requires ALFs to obtain a signed disclosure, on an HHSC prescribed form, from applicants for employment regarding out-of-state criminal convictions and to perform a name-based criminal history check in any state the applicant has lived in during the previous five years. Additionally, the amendment aims to implement SB 383 87(R) which requires an ALF that advertises, markets, or otherwise promotes that it provides memory care services to provide an additional HHSC-prescribed memory care disclosure statement to each resident. Written comment on this amendment may be submitted until September 4, 2022.
- HHSC proposes amendments relating to Definitions, Application Requirements, Notice of Rights and Services, General Requirements for a Nursing Facility, Automated External Defibrillators, Procedural Requirements-Licensure Inspections and Surveys, and Medicaid Swing Bed Program for Rural Hospitals. HHSC proposes the repeal of sections relating to Clinical Records Service Supervisor. The proposed amendments aims to implement SB 383 87(R) which requires a nursing facility that advertises, markets, or otherwise promotes that it provides memory care services to provide an additional HHSC prescribed memory care disclosure statement to each resident or resident representative and to each person applying for services from the facility or that person’s next of kin or guardian. The proposed amendment also aims to implement SB 199 87(R) which requires a NF to conduct monthly inspections of its automated external defibrillator. Amendments also aim to implement HB 1423 87(R) which increases the survey frequency of required unannounced NF inspections from two per three-year licensing period to one annually. Written comment on this amendment may be submitted until September 4, 2022.
STATE SUPPORTED LIVING CENTER INDEPENDENT MORTALITY REVIEW – 26 TAC §967.1
- HHSC proposes a new amendment concerning Independent Mortality Review. The proposal aims to comply with Texas Government Code which requires HHSC to identify the manner in which the state supported living centers must report the death of an individual served to the independent mortality review organization contracted pursuant to conduct an independent mortality review. The proposed amendment describes the timeframe the SSLC must follow when there is a death of a person with an intellectual or developmental disability in a SSLC. Written comment on this amendment may be submitted until September 4, 2022.
- HHSC proposes new amendments concerning the Texas Home Living program to comply with federal regulations that require home and community-based settings; including being integrated in and supporting full access of individuals to the greater community. CMS is requiring that states be in compliance with these regulations by March 17, 2023. In accordance with Rider 21 in the 2020-21 General Appropriations Act, HHSC developed a plan to replace day habilitation provided in the Home and Community-Based Services, Texas Home Living, and Deaf Blind with Multiple Disabilities Programs with individualized skills and socialization. The plan included the use of staffing ratios while providing off-site individualized skills and socialization to individuals to ensure that the individuals receive more personalized attention and more easily meet their personal goals and to ensure the health and safety of the individuals. In accordance with Rider 23 in the 2022-2023 GAA, the amendments replace day habilitation with individualized skills and socialization in the TxHmL Program. The proposed rules require that on-site and off-site individualized skills and socialization be provided by an individualized skills and socialization provider. The rules will require an individualized skills and socialization provider to be licensed as a day activity and health services facility with a special designation for individualized skills and socialization. The proposed rules include requirements for an individualized skills and socialization provider to make available both on-site and off-site individualized skills and socialization to individuals and meet staffing ratios based on levels of need for off-site individualized skills and socialization. The proposed rules also include requirements for the provision of in-home individualized skills and socialization including criteria that must be met for an individual to receive the service and that the service must be provided in the residence of the individual receiving the service. The proposed rules provide that HHSC may allow program providers to use one or more of the exceptions specified in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code. This provision is added to help ensure that providers are able to operate and provide services effectively during a disaster. The proposed rules discontinue day habilitation which includes in-home day habilitation effective March 1, 2023. A public hearing to receive comments on this proposal will be held via GoToWebinar on September 7, 2022 from 8:00 a.m. to 12:00 p.m. (central time). Written public comment can be submitted until September 11, 2022.
- HHSC proposes new amendments concerning the Texas Home Living program to comply with federal regulations that require home and community-based settings; including being integrated in and supporting full access of individuals to the greater community. CMS is requiring that states be in compliance with these regulations by March 17, 2023. In accordance with Rider 21 in the 2020-21 General Appropriations Act, HHSC developed a plan to replace day habilitation provided in the Home and Community-Based Services, Texas Home Living, and Deaf Blind with Multiple Disabilities Programs with individualized skills and socialization. The plan included the use of staffing ratios while providing off-site individualized skills and socialization to individuals to ensure that the individuals receive more personalized attention and more easily meet their personal goals and to ensure the health and safety of the individuals. In accordance with Rider 23 in the 2022-2023 GAA, the proposed rules implement the plan to replace day habilitation with individualized skills and socialization in the HCS Program and will ensure that HHSC is in compliance with by March 17, 2023. The proposed rules require that on-site and off-site individualized skills and socialization be provided by an individualized skills and socialization provider. The rules will require an individualized skills and socialization provider to be licensed as a day activity and health services facility with a special designation for individualized skills and socialization. The proposed rules include requirements for an individualized skills and socialization provider to make available both on-site and off-site individualized skills and socialization to individuals and meet staffing ratios based on levels of need for off-site individualized skills and socialization. The proposed rules also include requirements for the provision of in-home individualized skills and socialization including criteria that must be met for an individual to receive the service and that the service must be provided in the residence of the individual receiving the service. The proposed rules discontinue day habilitation which includes in-home day habilitation effective March 1, 2023. The proposed rules provide that HHSC may allow program providers to use one or more of the exceptions specified in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. This provision is added to help ensure that providers are able to operate and provide services effectively during a disaster. A public hearing to receive comments on this proposal will be held via GoToWebinar on September 7, 2022 from 8:00 a.m. to 12:00 p.m. (central time). Written public comment can be submitted until September 11, 2022.
- HHSC proposes new amendments concerning Individualized Skills and Socialization Provider Requirements. In 2014, the Centers for Medicare & Medicaid Services issued regulations governing the settings in which Medicaid home and community-based services are provided. To comply with the regulations, HHSC will replace existing day habilitation services in the Deaf Blind with Multiple Disabilities, Home and Community-based Services, and Texas Home Living Medicaid waiver programs with a new service for individuals with intellectual and developmental disabilities. This new, more integrated service is called individualized skills and socialization. The purpose of the proposal is to implement a new subcategory of day activity and health services licensure for individualized skills and socialization providers. This ensures individualized skills and socialization providers’ compliance without the cost and operational complexity involved in creating a new licensure type. The proposal is necessary to comply with Rider 21 in the 2020-2021 General Appropriations Act which requires HHSC to establish the individualized skills and socialization provider as a new provider type to replace traditional day habilitation providers. HHSC proposes licensing those new providers under the current DAHS statute and establishing a new subchapter of rules specific to these providers within existing DAHS rules. Written public comment will be accepted until September 11, 2022.
Education:
TEXAS EDUCATION AGENCY
Proposed Rules:
FOUNDATION SCHOOL PROGRAM – 19 TAC §105.1001
- TEA proposes an amendment concerning optional extended year programs. The proposed amendment would implement HB 3 86(R) by removing an outdated provision related to the school finance system. The proposed amendment would eliminate a subsection which references Option 4 wealth equalization agreements. Because of changes to the school finance system by HB 3 districts no longer exercise Option 4 agreements. Removing the outdated provision would align the rule with current practice and eliminate concerns of duplicate funding. Written comment on this amendment may be submitted until September 4, 2022.
Adopted Rules:
SCHOOL DISTRICTS – 19 TAC §61.1011
- TEA adopts an amendment concerning the formula transition grant. The amendment is adopted without changes to the proposed text as published in the May 20, 2022 issue of the Texas Register. The adopted amendment extends certain provisions related to the average daily attendance hold harmless to the 2020-2021 school year. The change extends 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 funding toward the ADA hold harmless. The adopted amendment removes language providing alternative provisions between the 2019-2020 and the 2020-2021 school years. A subsection updates the term “students with limited English proficiency” to “emergent bilingual students” in alignment with SB 2066 87(R). A new subsection excludes school district entitlements for certain students under TEC in calculations for the formula transition grant. The public comment period on the proposal began May 20, 2022 and ended June 20, 2022. No public comments were received. The adopted rule will go into effect on August 16, 2022.
SCHOOL DISTRICTS – 19 TAC §61.1017
- TEA adopts the repeal of sections concerning alternative compensatory education allotment calculation. The repeal is adopted without changes to the proposed text as published in the April 29, 2022 issue of the Texas Register. The adopted repeal implements HB 3 86(R), which modified the ways students are included in and generate funding for the state compensatory education allotment. HB 3 amended the statute to change the ways students are included in and generate funding for the state compensatory education allotment. Section on Reporting the Number of Educationally Disadvantaged Students for Calculating the Compensatory Education Allotment was amended effective April 19, 2022, to address the legislative changes of HB 3 that reflect the ways in which students are included in and generate funding for the state compensatory funding allotment. Therefore, the section is no longer necessary. The public comment period on the proposal began April 29, 2022 and ended May 31, 2022. No public comments were received. The repeal will go into effect on August 9, 2022.
PLANNING AND ACCOUNTABILITY – 19 TAC §97.1001
- TEA adopts an amendment concerning the accountability rating system. The amendment is adopted with changes to the proposed text as published in the May 13, 2022 issue of the Texas Register. The amendment adopts in rule applicable excerpts of the 2022 Accountability Manual. Earlier versions of the manual will remain in effect with respect to the school years for which they were developed. TEA has adopted its academic accountability manual in rule since 2000. The accountability system evolves from year to year, so the criteria and standards for rating and acknowledging schools in the most current year differ to some degree from those applied in the prior year. The intention is to annually to refer to the most recently published accountability manual. The amendment adopts excerpts of the 2022 Accountability Manual into rule as a figure. The excerpts, Chapters 1-11 of the 2022 Accountability Manual, specify the indicators, standards, and procedures used by the commissioner of education to determine accountability ratings for districts, campuses, and charter schools. These chapters also specify indicators, standards, and procedures used to determine distinction designations on additional indicators for Texas public school campuses and districts. Ratings may be revised as a result of investigative activities by the commissioner as authorized under Texas Education Code. A detailed description of the changes this rule brings to the 2022 Accountability Manual, and the changes made to the original publication of this rule due to public comment, can be found here. Dozens of public comments were left, including from education advocacy groups, school districts, and school staff. The adopted rule will go into effect on August 11, 2022.
- TEA adopts amendments concerning implementation of the academic content areas testing program. The amendments are adopted without changes to the proposed text as published in the May 13, 2022 issue of the Texas Register. The adopted amendments align the rules with HB 1603 87(R) which eliminated expiration dates for students to graduate through an Individual Graduation Committee, for former students to graduate through a district decision, and for students to use the Texas Success Initiative Assessment as a substitute assessment to meet assessment graduation requirements under TEC. With changes to the TEC, TEA determined that conforming amendments to its assessment rules needed to be made. New section outlines the specific assessment graduation requirements for different groups of students. The adopted amendment aligns the rule with HB 1603 by removing a subsection which stated the expiration date for students to receive a high school diploma if the student has qualified to graduate by means of an IGC under TEC. The term English language learner has been updated to emergent bilingual student to align with SB 2066 87(R). A section outlines the specific assessment graduation requirements for former students. The adopted amendment aligns the rule with HB 1603 by removing a subsection which stated the expiration date for the use of the TSIA as a substitute assessment for certain students. Finally, technical edits related to statutory references have been made to ensure consistency across administrative rules. The public comment period on the proposal began May 13, 2022 and ended June 13, 2022. No public comments were received. The adopted rule will go into effect on August 9, 2022.
EDUCATIONAL PROGRAMS – 19 TAC §§102.1011, 102.1013, 102.1015, 102.1017, 19 TAC §102.1053
- TEA adopts the repeal of sections concerning master teacher grant programs. The repeal is adopted without changes to the proposed text as published in the April 29, 2022 issue of the Texas Register. HB 3 86(R) removed the corresponding TEC sections. The adopted repeal is necessary since the authorizing statute no longer exists. The public comment period on the proposal began April 29, 2022 and ended May 31, 2022. No public comments were received. The repeal will go into effect on August 9, 2022.
TEXAS HIGHER EDUCATION COORDINATING BOARD
Adopted Rules:
STUDENT SERVICES – 19 TAC §§21.50 – 21.55
- THECB adopts new rules relating to the Texas First Early High School Completion Program, without changes to the proposed text as published in the April 29, 2022, issue of the Texas Register. The diploma established under this program enables a student to apply for admission to an eligible Texas public institution of higher education and also qualify for the Texas First Scholarship Program. The rule provides the minimum criteria by which students demonstrate eligibility for the Program, including high school credits, minimum Grade Point Average, and achieving an overall minimum score on one of five assessments or achieving a Grade Point Average that ranks the student in the top ten percent of the student’s class. Institutions and the Commissioner of Higher Education jointly developed and recommended these cut points. New sections also provides the assessments and related standards and competencies that demonstrate a student’s mastery of each subject area for which the Coordinating Board and Commissioner of Higher Education have adopted college readiness standards, plus a language other than English, as required in TEC. It provides a process by which a student verifies eligibility for the Program and codification on the student’s transcript. These standards align to scores established by the Coordinating Board to define college readiness and provide for the use of assessments and scores commonly used by institutions to place students in college-level course work. New rule provides a notification requirement by the high school to its students and their parents or guardians listing the eligibility requirements for the Program, including the requirement for the student to provide official copies of applicable assessments to receive credit, as required in TEC. No public comments were received regarding the adoption of the new rule. The adopted rule will go into effect on August 21, 2022.
STUDENT FINANCIAL AID PROGRAMS – 19 TAC §§22.550 – 22.556
- THECB adopts new rules relating to the Texas First Scholarship Program with changes to the proposed text as published in the April 29, 2022, issue of the Texas Register. The Texas First Scholarship is a portable scholarship, which a student may use at any public research or emerging research institution in the state. The new section requires research and emerging research institutions to participate in the program. Research and emerging research institutions must also abide by the General Provisions outlined in Subchapter A of Chapter 22. The amount of the state credit issued through the Texas First Scholarship Program is tied in statute to the maximum value of the TEXAS Grant. As outlined in TEC, the Texas First Scholarship Program uses a reimbursement approach, new sections include reporting requirements. No comments were received regarding the adoption of the new rules. The adopted rule will go into effect on August 21, 2022.