TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM

SUBCHAPTER Z. EMERGENCY RULEMAKING

26 TAC §306.1351

The Executive Commissioner of the Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Texas Administrative Code, Chapter 306, Behavioral Health Delivery System, new Subchapter Z, Emergency Rulemaking, §306.1351, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19. As authorized by Government Code, §2001.034, the Commission may adopt an emergency rule without prior notice or hearing if it finds that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. Emergency rules adopted under Government Code, §2001.034, may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

BACKGROUND AND PURPOSE

The purpose of the emergency rulemaking is to support the Governor's March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of these emergency rules for Behavioral Health Services in response to COVID-19.

To protect individuals receiving mental health services and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to establish flexibility of certain requirements to: allow alternative methods other than face-to-face contact or in-person interactions, such as the use of telehealth, telemedicine, video-conferencing, or telephonic methods; allow virtual platforms instead of a private physical space for certain in-person interactions, such as the use of a telephone or video-conferencing; and allow a child or adolescent participating in the YES Waiver Program to reside with another responsible adult as the child or adolescent may not be residing with his or her legally authorized representative due to COVID-19.

STATUTORY AUTHORITY

The emergency rulemaking is adopted under Government Code, §2001.034 and §531.005 and Health and Safety Code §§533.014, 533.035, 533.0356, 534.052, 534.058, 572.0025, 571.006, and 577.010. Government Code §2001.034 authorizes the adoption of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice; and Government Code, §531.0055, authorizes the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by health and human services system. Health and Safety Code §533.014 requires the Executive Commissioner of HHSC to adopt rules regarding certain responsibilities for LMHAs; §533.035 authorizes HHSC to contract with LMHAs for the delivery of mental health services; §533.0356 allows the Executive Commissioner of HHSC to adopt rules governing Local Behavioral Health Authorities (LBHAs); §534.052 authorizes the Executive Commissioner of HHSC to adopt rules to ensure the adequate provision of community-based mental health services; §534.058 authorizes the Executive Commissioner to develop standards of care for services provided by LMHAs and their subcontractor; §572.0025 authorizes the Executive Commissioner of HHSC to adopt rules governing the voluntary admission of a patient to an inpatient mental health facility; §571.006 authorizes the Executive Commissioner to adopt rules to ensure the proper and efficient treatment of persons with mental illness; and §577.010 authorizes the Executive Commissioner to adopt rules to ensure the proper care and treatment of patients in a private mental hospital or mental health facility.

The emergency rule implements Government Code §531.0055 and Health and Safety Code §§533.014, 533.035, 533.0356, 534.052, 534.058, 572.0025, 571.006, and 77.010.

§306.1351.COVID-19 Flexibilities.

(a) Rules in Title 25 and Title 26 of the Texas Administrative Code (TAC) require behavioral health providers to deliver certain services through face-to-face contact. Beginning on March 13, 2020, through the withdrawal or expiration of this emergency rule, the provision of behavioral health services through a face-to-face contact, otherwise required by the rules identified in subsection (b) of this section, is not required. Instead, providers may use telehealth, telemedicine, video-conferencing, or telephonic methods to engage with the individual to provide these services, to the extent this flexibility is permitted by and does not conflict with other law or obligation of the provider. Providers must ensure the selected method of contact complies with all applicable requirements related to security and privacy of information.

(b) Providers may use alternative interaction methods instead of a face-to-face contact to provide the services described in the following rules:

(1) §301.327 of this title (relating to Access to Mental Health Community Services);

(2) §301.351 of this title (relating to Crisis Services);

(3) §301.353 of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization);

(4) §301.357 of this title (relating to Additional Standards of Care Specific to Mental Health Community Services for Children and Adolescents);

(5) §301.359 of this title (relating to Telemedicine Services);

(6) §306.207 of this title (relating to Post Discharge or Absence for Trial Placement: Contact and Implementation of the Recovery or Treatment Plan);

(7) §306.263 of this chapter (relating to MH Case Management Services Standards);

(8) §306.275 of this chapter (relating to Documenting MH Case Management Services);

(9) §306.277 of this chapter (relating to Medicaid Reimbursement);

(10) §306.305 of this chapter (relating to Definitions);

(11) §306.323 of this chapter (relating to Documentation Requirements);

(12) §306.327 of this chapter (relating to Medicaid Reimbursement);

(13) §307.53 of this title (relating to Eligibility Criteria and HCBS-AMH Assessment);

(14) 25 TAC §415.10 (relating to Medication Monitoring); and

(15) 25 TAC §415.261 (relating to Time Limitation on an Order for Restraint or Seclusion Initiated in Response to a Behavioral Emergency).

(c) Section 414.554 of Title 25 of the Texas Administrative Code requires behavioral health providers to provide a private physical space for certain in-person interactions. Beginning on March 13, 2020, through the withdrawal or expiration of this emergency rule, the provision of a private physical space, otherwise required by the rule identified in subsection (d) of this section, is not required. Instead, providers may provide virtual platforms, such as telephone or video-conferencing, rather than providing a private physical space for these interactions to the extent this flexibility is permitted by and does not conflict with other law or obligation of the provider. Providers must ensure the selected method of contact complies with all applicable requirements related to security and privacy of information.

(d) Providers may provide virtual platforms instead of a private physical space for these interactions provided under 25 TAC §414.554 (relating to Responsibilities of Local Authorities, Community Centers, and Contractors).

(e) Section 307.5 of Title 26 of the Texas Administrative Code requires a child or adolescent participating in the Youth Empowerment Services (YES) Waiver Program to reside with their legally authorized representative. Children or adolescents participating in the YES Waiver Program are not required to reside with their legally authorized representative, notwithstanding the requirements of §307.5 of this title (relating to Eligibility Criteria).

The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 23, 2020.

TRD-202003016

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: July 23, 2020

Expiration date: November 19, 2020

For further information, please call: (512) 468-1729


CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING

SUBCHAPTER A. HOSPITALS

26 TAC §500.2

The agency is renewing the effectiveness of emergency new §500.2 for a 60-day period. The text of the emergency rule was originally published in the April 17, 2020, issue of the Texas Register (45 TexReg 2470).

Filed with the Office of the Secretary of State on July 28, 2020.

TRD-202003080

Karen Ray

Chief Counsel

Health and Human Services Commission

Original effective date: April 4, 2020

Expiration date: September 30, 2020

For further information, please call: (512) 834-4591


SUBCHAPTER B. END STAGE RENAL DISEASE FACILITIES

26 TAC §500.20

The Health and Human Services Commission is renewing the effectiveness of emergency new §500.20 for a 60-day period. The text of the emergency rule was originally published in the April 17, 2020, issue of the Texas Register (45 TexReg 2470).

Filed with the Office of the Secretary of State on July 28, 2020.

TRD-202003079

Karen Ray

Chief Counsel

Health and Human Services Commission

Original effective date: April 3, 2020

Expiration date: September 29, 2020

For further information, please call: (512) 834-4591


CHAPTER 510. PRIVATE PSYCHIATRIC HOSPITALS AND CRISIS STABILIZATION UNITS

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

26 TAC §510.48

The agency is renewing the effectiveness of emergency new §510.48 for a 60-day period. The text of the emergency rule was originally published in the April 17, 2020, issue of the Texas Register (45 TexReg 2472).

Filed with the Office of the Secretary of State on July 28, 2020.

TRD-202003078

Karen Ray

Chief Counsel

Health and Human Services Commission

Original effective date: April 3, 2020

Expiration date: September 29, 2020

For further information, please call: (512) 438-3161


CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS

SUBCHAPTER C. GENERAL PROVISIONS

DIVISION 1. OPERATIONS AND SAFETY PROVISIONS

26 TAC §550.212

The Health and Human Services Commission is renewing the effectiveness of emergency new §550.212 for a 60-day period. The text of the emergency rule was originally published in the April 17, 2020, issue of the Texas Register (45 TexReg 2473).

Filed with the Office of the Secretary of State on July 28, 2020.

TRD-202003077

Karen Ray

Chief Counsel

Health and Human Services Commission

Original effective date: April 3, 2020

Expiration date: September 29, 2020

For further information, please call: (512) 438-3161


CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

SUBCHAPTER M. COVID-19 EMERGENCY RULE

26 TAC §551.401

The agency is renewing the effectiveness of emergency new §551.401 for a 60-day period. The text of the emergency rule was originally published in the April 17, 2020, issue of the Texas Register (45 TexReg 2474).

Filed with the Office of the Secretary of State on July 28, 2020.

TRD-202003075

Karen Ray

Chief Counsel

Health and Human Services Commission

Original effective date: April 3, 2020

Expiration date: September 29, 2020

For further information, please call: (512) 438-3161


CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

SUBCHAPTER C. STANDARDS FOR LICENSURE

26 TAC §553.45

The agency is renewing the effectiveness of emergency new §553.45 for a 60-day period. The text of the emergency rule was originally published in the April 17, 2020, issue of the Texas Register (45 TexReg 2475).

Filed with the Office of the Secretary of State on July 28, 2020.

TRD-202003071

Karen Ray

Chief Counsel

Health and Human Services Commission

Original effective date: April 3, 2020

Expiration date: September 29, 2020

For further information, please call: (512) 438-3161


CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

SUBCHAPTER D. ADDITIONAL STANDARDS SPECIFIC TO LICENSE CATEGORY AND SPECIFIC TO SPECIAL SERVICES

26 TAC §558.408

The Health and Human Services Commission is renewing the effectiveness of emergency new §558.408 for a 60-day period. The text of the emergency rule was originally published in the April 17, 2020, issue of the Texas Register (45 TexReg 2476).

Filed with the Office of the Secretary of State on July 28, 2020.

TRD-202003072

Karen Ray

Chief Counsel

Health and Human Services Commission

Original effective date: April 3, 2020

Expiration date: September 29, 2020

For further information, please call: (512) 438-3161


SUBCHAPTER H. STANDARDS SPECIFIC TO AGENCIES LICENSED TO PROVIDE HOSPICE SERVICES

DIVISION 7. HOSPICE INPATIENT UNITS

26 TAC §558.872

The Health and Human Services Commission is renewing the effectiveness of emergency new §558.872 for a 60-day period. The text of the emergency rule was originally published in the April, 17, 2020, issue of the Texas Register (45 TexReg 2477).

Filed with the Office of the Secretary of State on July 28, 2020.

TRD-202003076

Karen Ray

Chief Counsel

Health and Human Services Commission

Original effective date: April 3, 2020

Expiration date: September 29, 2020

For further information, please call: (512) 438-3161