Texas Register Spotlight – December 2022 & January 2023

Below is a spotlight on the proposed, withdrawn, and adopted rules from the December 23, December 30, January 6, January 13, and January 20 editions of the Texas Register.

Education

TEXAS EDUCATION AGENCY

Proposed Rules

• EDUCATIONAL PROGRAMS- 19 TAC §102.1601– The proposed rule amends the supplemental special education services and instructional materials program for certain public-school students receiving special education services. The proposed amendment would reflect a grant source change and provide clarification. Public comment period begins on January 20, 2023 and ends February 21, 2023. The earliest possible date of adoption is February 19, 2023.
• STATEMENT OF INVESTMENT OBJECTIVES, POLICIES, AND GUIDELINES OF THE TEXAS PERMANENT SCHOOL FUND- 19 TAC §§33.1, 33.5, 33.10, 33.15, 33.20, 33.25, 33.30, 33.35, 33.40, 33.45, 33.50, 33.55, 33.60, 33.65, 33.67, 19 TAC §§33.3, 33.4, 33.6 – 33.8 – Proposed amendments would change existing rules to the Bond Guarantee Program, including changes to the reserve, and reorganizes Texas Permanent School Fund Corporation rules. The public comment period on the proposal begins December 23, 2022 and ends at 5:00 p.m. on January 27, 2023. The earliest possible date of adoption is January 22, 2023.
• TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR MATHEMATICS – 19 TAC §111.56 – The proposed new section would add a new Advanced Placement mathematics course to align with current offerings from the College Board. The public comment period on the proposal begins December 23, 2022 and ends at 5:00 p.m. on January 27, 2023. The earliest possible date of adoption is January 22, 2023.
• TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR CAREER DEVELOPMENT AND CAREER AND TECHNICAL EDUCAITON – 19 TAC §§127.1 – 127.3, 19 TAC §127.2 – The new rules proposed would repeal two existing middle school courses, add a new middle school course, and repeal language that will no longer be relevant. The public comment period on the proposal begins December 23, 2022 and ends at 5:00 p.m. on January 27, 2023. The earliest possible date of adoption is January 22, 2023.
• STUDENT ATTENDANCE- 19 TAC §129.1, 19 TAC §129.21 – Free attendance in general is being repealed. Requirements for student attendance accounting for state funding purposed is being proposed. The public comment period on the proposal begins December 23, 2022 and ends at 5:00 p.m. on January 27, 2023. The earliest possible date of adoption is January 22, 2023.

Adopted Rules

• ADAPTATIONS FOR SPECIAL POPULATIONS – 19 TAC §§89.1601, 89.1603, 89.1605, 89.1607, 89.1609, 89.1611, 89.1613, 89.1615, 89.1617, 19 TAC §89.1607 – The amendment and new section are adopted under the Texas Education code which requires the agency to assist the transitions of students who are homeless or in substitute care from on school to another. The effective date of adoption was January 1, 2023.
• ASSESSMENT- 19 TAC §101.5001– Adopted rules amend the statewide testing calendar. The adopted amendment provides clarification to existing statutory provisions and reflects changes made to the statewide assessment program by HB 3261 87(R), which required state assessments to be administered online beginning with the 2022-2023 school year. The effective date of adoption is January 10, 2023.
• COMMISSIONER’S RULES CONCERNING EXAMINATION REQUIREMENTS- 19 TAC §152.1001-Adopted amendments update the rules by adding military community members to the population of educators licensed outside the state and eligible to qualify for an exception to examination requirements in Texas. They also provide additional edits to improve the readability and applicability of the rules. The effective date of adoption is January 10, 2023.
• HEARINGS AND APPEALS- 19 TAC §§157.1049-157.1051, 157.1059, 157.1060, 19 TAC §157.1072, 19 TAC §157.1102– Adopted amendments modify the rules to provide for electronic filings and service of documents with the agency’s division responsible for hearings and appeals. The effective date of adoption is January 10, 2023.
• ADAPTATIONS FOR SPECIAL POPULATIONS-CLARIFICATION OF PROVISIONS IN FEDERAL REGULATIONS- 19 TAC §89.1080, DISPUTE RESOLUTION, 19 TAC §89.1195– Adopted rules provide updates and clarifications regarding special education complaints. The effective date of adoption is January 18, 2023.
• HEALTH AND SAFETY-19 TAC §103.1303– Adopted rule amends the commissioner’s review of actions concerning video cameras in special education settings. The adopted amendment updates the procedures for documents filed with the agency’s division responsible for hearings and appeals to allow electronic filing. The effective date of adoption is January 22, 2023.

Withdrawn Rules

• ADAPTATIONS FOR SPECIAL POPULATIONS-DISPUTE RESOLUTION- 19 TAC §89.1185 – The Texas Education Agency withdraws the proposed amendment to §89.1185.

STATE BOARD FOR EDUCATOR CERTIFICATION

Proposed Rules

• PROFESSIONAL EDUCATOR PREPARATION AND CERTIFICATION – 19 TAC §230.25 – The proposed amendment would create a carve-out for the Science of Teaching Reading examination, removing the requirement that a candidate be unable to process only written linguistic information to allow an exemption. It would also remove the requirement that to qualify for an exemption, a person who is already certified in another state and seeking a one-year certificate in Texas must have a recommendation. The public comment period on the proposal begins December 30, 2022 and ends January 30, 2023. The earliest possible date of adoption is January 29, 2023.
• CATEGORIES OF CLASSROOM TEACHING CERTIFICATES-19 TAC §§233.1 – 233.3, 233.5, 233.8, 233.10, 233.14, 233.15 – The proposed amendments would remove certificates no longer issued by SBEC and would remove language referencing deadlines for use of test scores for certificate issuance. It would also add three new special education certificates into rule; would update language specific to licensure requirements for cosmetology certification; and would propose the addition of a new foreign language certificate to the list of credentials issued by the SBEC. The public comment period on the proposal begins December 30, 2022 and ends January 30, 2023. The earliest possible date of adoption is January 29, 2023.
• STUDENT SERVICES CERTIFICATES-19 TAC §§239.40, 239.45, 239.55, 239.60, 239.65,
  19 TAC §239.70, 19 TAC §§239.90 – 239.95, 19 TAC §§239.93 – 239.95 – The proposed revisions update the standards for the School Librarian and Reading Specialist certificates and would provide timelines for transitions for both certificates to the new standards. The public comment period on the proposal begins December 30, 2022 and ends January 30, 2023. The earliest possible date of adoption is January 29, 2023.

Adopted Rules

• ACCOUNTABILITY SYSTEM FOR EDUCATOR PREPARATION PROGRAMS- 19 TAC §§229.1- 229.5, 229.9 – The adopted amendments provide for adjustments to the 2021-2022 Accountability System for Educator Preparation Manual, implement SB 2066, clarify assessments used for accountability, update procedures for educator preparation program commendations, provide the SBEC additional flexibility and clarify what data is used for the determination of accreditation statuses. The effective date of adoption was December 29, 2022.

Environment

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Proposed Rules

• ON-SITE SEWAGE FACILITIES- 30 TAC §§285.2, 285.3, 285.7, 30 TAC §§285.32 – 285.34, 285.38, 30 TAC §285.64, 30 TAC §285.91 – The proposed rules would update the definition of “direct communication” to ensure that, in addition to the installer and the installer’s apprentice being able to communicate directly, the maintenance provider and the maintenance provider’s technician would also be able to communicate directly. The commission will hold a hybrid virtual and in-person public hearing on January 30, 2023. Individuals who plan to attend the hearing virtually must register by January 26, 2023. The earliest possible date of adoption is January 29, 2023.

Adopted Rules

• STANDARDS OF PERFORMANCE FOR HAZARDOUS AIR POLLUTANTS AND FOR DESIGNATED FACILITIES AND POLLUTANTS – 30 TAC §§113.100 (see rule for full section list) – The rulemaking adoption will revise Chapter 113 to incorporate by reference changes that the United States Environmental Protection Agency has made to several existing National Emission Standards for Hazardous Air Pollutants. The effective date of adoption was January 5, 2023.

Health Care

DEPARTMENT OF STATE HEALTH SERVICES

Proposed Rules

• HOSPITAL LICENSING- 25 TAC §§131.181-131.191– The purposed amendments would update the content and processes with the advances and practices since these rules were adopted in 2016. Public comment period ends on February 13, 2023. The earliest possible date of adoption is February 12, 2023.

Adopted Rules

• GENERAL SANITATION – 25 TAC §§265.181 – 265.211, 25 TAC §§265.181 – 265.198 – The Texas Health and Human Services Commission adopts to repeal these rules concerning Public Swimming Pools and Spas. The repeal of these rules and new rules complies with HB 2205. The effective date of adoption was January 1, 2023.
• HOSPITAL LICENSING – 25 TAC §§133.201 – 133.211 – The adoption updates the content and processes with the advances and practices since the rules were adopted in 2018. SB 749, 86thLegislature, requires language specific to waiver agreements, a three-person appeal panel for designation reviews, and language specific to telemedicine and telehealth be integrated into the maternal rules. The effective date of adoption was January 8, 2023.

HEALTH AND HUMAN SERVICES

Proposed Rules

• MEDICAID MANAGED CARE – 1 TAC §§353.1501 – 353.1506 – The proposed new rules implement Texas Government Code §533.039, as added by HB 4 87(R), which requires HHSC to establish by rule policies and procedures that allow a Medicaid managed care organization to conduct assessments and provide care coordination services using telecommunications and information technology. A public hearing is scheduled by webinar for January 11, 2023. Written comments must be submitted before February 13, 2023. The earliest possible date of adoption is January 29, 2023.

Adopted Rules

• DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS PROVIDER REQUIREMENTS – 26 TAC §§559.225, 559.227, 559.229 – Rules implement chapter 103 and set licensing and setting standards for facilities licensed under chapter 103. The effective date of adoption was January 1, 2023.
• REIMBURSEMENT RATES- TEXAS HEALTHCARE TRANSFORMATION AND QUALITY IMPROVEMENT PROGRAM REIMBURSEMENT 1 TAC §355.8212, §355.8214 – The adopted rule amends Waiver Payments to Hospitals for Uncompensated Charity Care, and Waiver Payments to Physician Group practices for Uncompensated Charity Care. These amended rules update the definition and the methodology used to allocate funds to physician groups The effective date of adoption is January 10, 2023.
• MEDICAID HEALTH SERVICES- ADVANCED TELECOMMUNICATIONS SERVICES
  1 TAC §§354.1430, 354.1432, 354.1434-354.1436, GENERAL PROVISIONS- 1 TAC §§354.2603, 354.2607, 354.2609, MENTAL HEALTH TARGETED CASE MANAGEMENT- 1 TAC §354.2655, §354.2657, MENTAL HEALTH REHABILITATION- 1 TAC §§354.2707, 354.2709, 354.2711, 354.2713– The adopted rules implement Texas Government Code §531.02161, added by HB 4, 87th Legislature, which requires the HHSC to develop and implement policies and procedures for the provision of healthcare services delivered via telemedicine and telehealth, including certain behavioral health services using an audio-only platform. The effective date of adoption is January 23, 2023.
• LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS- OPERATIONS AND SAFETY PROVISIONS-26 TAC §550.209– The adopted rule amends the Emergency Preparedness and Response in Chapter 550, Licensing Standards for Prescribed Pediatric Extended Care Centers. The amendment is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC. Here are where your max two sentence summaries would go. The effective date of adoption is January 24, 2023.
• INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS- 26 TAC §551.50– The adopted rule amends the Emergency Preparedness and Response in Chapter 551, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions. The amendment is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC. The effective date of adoption is January 24, 2023.
• LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES- 26 TAC §553.275– The adopted rule amends the Emergency Preparedness and Response in Chapter 553, Licensing Standards for Assisted Living Facilities. The amendment is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC. The effective date of adoption is January 24, 2023.
• NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION- 26 TAC §554.1914– The adopted rule amends the Emergency Preparedness and Response in Chapter 554, Nursing Facility Requirements for Licensure and Medicaid Certification. The amendment is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC. The effective date of adoption is January 24, 2023.
• LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES- AGENCY ADMINISTRATION- 26 TAC §558.256– The adopted rule amends the Emergency Preparedness Planning and Implementation in Chapter 558, Licensing Standards for Home and Community Support Services Agencies. The amendment is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC. The effective date of adoption is January 24, 2023.
• DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS- 26 TAC §559.64– The adopted rule amends the Emergency Preparedness and Response for Chapter 559, Day Activity and Health Services Requirements. The amendment is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC. The effective date of adoption is January 24, 2023.
• HOME AND COMMUNITY-BASED (HCS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) CERTIFICATION STANDARDS- 26 TAC §565.1– The adopted rule concerns the Emergency Response System for new Chapter 565, Home and Community-based Services Program and Community First Choice certification standards. The adopted rule is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC. The effective date of adoption is January 24, 2023.
• TEXAS HOME LIVING (TXHML) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) CERTIFICATION STANDARDS- 26 TAC §566.1– The adopted rule concerns the Emergency Response System for new Chapter 566, Texas Home Living Program and Community First Choice certification standards. The adopted rule is necessary to implement a new procedure that requires the program provider to assign a designee to enroll and respond to requests through the Emergency Communication System in the format established by HHSC. The effective date of adoption is January 24, 2023.
• LICENSING- ADMINISTRATIVE REVIEWS- 26 TAC §§745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815, DUE PROCESS HEARINGS- 26 TAC §§745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855, OPERATING PENDING AN ADMINISTRATIVE REVIEW AND DUE PROCESS HEARING- 26 TAC §§745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881– The adopted rules are necessary to continue to comply with HB 5, 85th Legislature, directing the Texas Department of Family and Protective Services to become a stand-alone agency that is separate for the Texas Health and Human Servies Commission. The effective date of adoption is January 26, 2023.

Other

COMPTROLLER OF PUBLIC ACCOUNTS

Proposed Rules

• TAX ADMINISTRATION- 34 TAC §3.591– The proposed amendments would change the existing rule to incorporate the Supreme Court decision that the most natural reading of ‘service performed in this state’ supports locating the performance of the service at the place where the taxpayer’s personnel or equipment is physically doing useful work for the customer. The earliest possible date of adoption is February 19, 2023.

TEXAS ANIMAL HEALTH COMMISSION

Proposed Rules

• CHRONIC WASTING DISEASE – 4 TAC §40.6 – The proposed amendments look to address concerns regarding Chronic Wasting Disease Movement Restriction Zones. The proposed amendments would establish one new CZ 5, expand CZ 2 and CZ 3, create a new SZ 8, and modify existing SZ 5. Comments regarding the proposed amendments must be submitted before January 22, 2023. The earliest possible date of adoption is January 22, 2023.