PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 338. DISASTER RULE FLEXIBILITIES FOR LOCAL INTELLECTUAL AND DEVELOPMENTAL DISABILITY AUTHORITIES (LIDDAs)
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts new §338.1, concerning Disaster Rule Flexibilities for Local Intellectual and Developmental Disability Authorities (LIDDAs). The new §338.1 is adopted with changes to the proposed text as published in the December 8, 2023, issue of the Texas Register (48 TexReg 7123). This rule will be republished.
BACKGROUND AND JUSTIFICATION
The purpose of the new rule is to allow LIDDAs to use certain flexibilities to rules when providing services during a declared disaster under Texas Government Code §418.014. LIDDAs provide essential services to individuals with intellectual or developmental disabilities (IDD). This vulnerable population relies on LIDDA staff to assist them in securing the services they need, achieving their desired outcomes and best quality of life. Disaster rule flexibilities for LIDDAs ensure that when a disaster declaration is in effect, HHSC may issue timely guidance and authorize flexibilities for LIDDAs to provide services.
The new rule allows HHSC to notify LIDDAs of certain flexibilities immediately upon a disaster declaration to prevent interruption of service delivery. These flexibilities include allowing service coordination to be delivered via audio-only or audio-visual communication to ensure continuity of services, as well as extending some timeframes for LIDDAs. In addition, the rule requires that LIDDAs follow HHSC guidance related to the rules, comply with all applicable requirements related to security and privacy of information, and notify persons impacted by the flexibilities, if applicable.
COMMENTS
The 31-day comment period ended on January 8, 2024.
During this period, HHSC received no comments regarding the proposed rule.
HHSC made minor editorial changes to correct a cross-reference to another rule in §338.1(c)(2)(B) and add "synchronous" to the definitions of "audio-only" and "audio-visual" to align the definitions with the Medicaid State Plan amendment.
STATUTORY AUTHORITY
The new rule is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Human Resources Code §32.021, which provides that HHSC will adopt necessary rules for the proper and efficient administration of the Medicaid program; and Texas Health & Safety Code §533A.0355(a), which provides that the Executive Commissioner of HHSC shall adopt rules establishing the roles and responsibilities of LIDDAs.
§338.1.Disaster Flexibilities.
(a) Definitions. The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Audio-only--A synchronous, interactive, two-way audio communication that uses only sound and that meets the privacy requirements of the Health Insurance Portability and Accountability Act. Audio-only includes the use of telephonic communication. Audio-only does not include face-to-face communication.
(2) Audio-visual--A synchronous, interactive, two-way audio and video communication that conforms to privacy requirements under the Health Insurance Portability and Accountability Act. Audio-visual does not include audio-only or in-person communication.
(3) Face-to-face--In-person or audio-visual communication that meets the requirements of the Health Insurance Portability and Accountability Act. Face-to-face does not include audio-only communication.
(4) In-person (or in person)--Within the physical presence of another person. In-person or in person does not include audio-visual or audio-only communication.
(b) The Texas Health and Human Services Commission (HHSC) may allow local intellectual and developmental disability authorities (LIDDAs) to use the flexibilities described in subsection (c) of this section while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. HHSC will notify LIDDAs when a flexibility is permitted and the date the flexibility must no longer be used, which may be before the declaration of a state of disaster expires.
(c) Subject to the notification by HHSC, the following flexibilities may be available to LIDDAs to the extent the flexibility is permitted by and does not conflict with other laws or obligations of the LIDDA and is allowed by federal and state law.
(1) Service coordination required to be provided in person under 26 TAC §331.11(d) of this title (relating to LIDDA's Responsibilities) may be provided using audio-visual or audio-only communication.
(2) HHSC may extend the timeframes for LIDDAs in the following rules:
(A) the timeframe to request an administrative hearing in 40 TAC §4.156 (relating to Request for an Administrative Hearing);
(B) the timeframe for a person and legally authorized representative (LAR) to request a review of a decision to deny or terminate services in 26 TAC §301.155(e)(3) (relating to Notification and Appeals Process);
(C) the timeframe for a person or the person's parent to comply with the applicable accountability requirement in 40 TAC §2.105(f)(1) (relating to Accountability) in order for the LIDDA to retroactively adjust the person's account; and
(D) the timeframe for a person or parent to submit a request to review a LIDDA's appeal decision to HHSC in 40 TAC §2.109(e)(3) (relating to Payments, Collections, and Non-payment).
(d) LIDDAs that use one or more of the flexibilities allowed under subsection (c) of this section must comply with:
(1) all policy guidance applicable to the rules identified in subsection (c) of this section issued by HHSC Community Services Division during the declaration of disaster that is published by HHSC on its LIDDA website or in another communication format HHSC determines appropriate; and
(2) all policy guidance applicable to the rules identified in subsection (c) of this section issued by HHSC Medicaid and CHIP Services.
(e) LIDDAs must ensure audio-only or audio-visual communication complies with all applicable requirements related to security and privacy of information.
(f) LIDDAs must notify the person, the LAR, or the person's parent if the person is younger than 18 years of age, of the extension of timeframes permitted under subsection (c)(2) of this section that apply to the person receiving services.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 26, 2024.
TRD-202400835
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: March 17, 2024
Proposal publication date: December 8, 2023
For further information, please call: (512) 438-5609
26 TAC §§556.2, 556.3, 556.5, 556.8
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts amendments §556.2, concerning Definitions; §556.3, concerning NATCEP Requirements; §556.5, concerning Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements; and §556.8, concerning Withdrawal of Approval of a NATCEP.
The amendments to §§556.2, 556.3, 556.5, and 556.8 are adopted without changes to the proposed text as published in the October 27, 2023, issue of the Texas Register (48 TexReg 6332). These rules will be not republished.
BACKGROUND AND JUSTIFICATION
The amended rules stipulate that Nurse Aide Competency Evaluation Programs (NATCEPs) must accept 60 hours of classroom training through HHSC's computer-based training (CBT) for nurse aide candidates seeking to qualify for the Certified Nurse Aide (CNA) exam. The amendments update definitions and references associated with the nurse aide CBT training and clarify related requirements. The amended rules also revise language regarding credentials for NATCEP directors and instructors, making them more consistent with federal requirements. Specifically, the Code of Federal Regulations (CFR) does not differentiate between the credentials required by the NATCEP program director versus the program instructor. It states that the program must train nurse aides under the general supervision of a registered nurse with at least two years of nursing experience, at least one of which must be in providing long term care services. The amended rules remove specific credentialing requirements for NATCEP directors and instructors and replace them with language allowing either or both to meet the federal requirements outlined in the CFR.
COMMENTS
The 31-day comment period ended November 27, 2023. During this period, HHSC received eight comments regarding the proposed rules from eight commenters: a nursing facility administrator, several NATCEP directors, and a NATCEP consultant.
HHSC received eight general comments on the proposed rule amendments. These comments were not related to a specific rule but rather to the overall amendments.
Comment: Six commenters conveyed a misunderstanding that the CBT would constitute the nurse aide training in full, and that after finishing it, trainees would go into the workforce and begin caring for clients independently.
Response: No rule changes are necessary. The CBT is intended to provide an optional method for nurse aide trainees to complete only the classroom portion of the training. Trainees will still be required to complete the clinical portion of the training, under supervision, as specified by Texas Administrative Code (TAC), Title 26 §556.3(n)(2), and to take and pass the CNA certification exam as specified by 26 TAC §556.6. NATCEPs may continue to provide in-person classroom training. HHSC's CBT is simply an additional option for the classroom component of the preparation for the CNA exam.
Comment: One commenter registered concern that the CBT could negatively impact NATCEPs that cannot offer a virtual classroom or online instruction.
Response: No rule changes are necessary. NATCEPs do not need to offer a virtual classroom. Trainees are not required to complete the CBT in a NATCEP classroom. HHSC will host the CBT on the agency website and trainees can complete the training in any setting.
Comment: Five commenters expressed concern that the CBT will not include direct skills training with residents.
Response: HHSC declines to make changes to the rules in response to these comments. Instruction in direct skills is provided by NATCEPs in the clinical portion of the training.
Comment: Six commenters conveyed concern that the online training would be lower in quality than in-person instruction and could result in a range of unfavorable outcomes, such as lower motivation to learn, less retention of training material in trainees, and reduced graduation rates for NATCEPs.
Response: HHSC declines to make changes to the rules in response to these comments. HHSC is creating the CBT to ensure the curriculum meets regulatory standards. Trainees will be able to choose between CBT training and traditional classroom training based on their own preferred learning styles and methods of motivation. Moreover, the rules already allow NATCEPs to use online training instead of, or in addition to, in-person training.
Comment: Six commenters expressed concern about the financial impact statement of the rule proposal's preamble. They stated that NATCEPs will face a reduction in business revenue due to HHSC's provision of CBT and requirement that NATCEPs accept completion of it as completion of the classroom portion of the nurse aide training.
Response: HHSC recognizes these concerns but declines to make changes to the rules in response to the comments. HHSC does not regulate how private businesses structure their business model or fees. Additionally, some NACTEPs--including those operated by nursing facilities under a Medicaid contract and public high schools--do not charge any fees for the training provided. NATCEPs may choose to operationalize their businesses as they deem appropriate and may make changes to their business practices including any fees associated with the services provided.
Comment: One commenter proposed that HHSC create a NATCEP taskforce.
Response: No changes to the rules are necessary. HHSC has a nurse aide workgroup that provides input on policy and rule and will continue to work with its members.
Comment: One commenter offered to create the CBT.
Response: No changes to the rules are necessary. HHSC is developing the CBT internally as the regulating agency that sets the standards for the curriculum and will release it to the public when it becomes available and the rules regarding it go into effect.
Comment: One commenter stated that the CBT is an excellent idea to keep up with national regulations and remain up to date with technology that will also streamline the process and help to educate more CNAs.
Response: No changes to the rules are necessary. HHSC appreciates this feedback and acknowledges the benefits of the CBT highlighted therein.
Comment: Five commenters asked how they would be able to verify authenticity of the CBT completion certificates from HHSC. One commenter requested that HHSC consider adding a feature to the Texas Unified Licensure Information Portal (TULIP) to allow a NATCEP director to confirm a trainee's CBT completion.
Response: No changes to the rules are necessary. HHSC will issue guidance about determining the authenticity of CBT certificates. CBT scores will be retained in a learning management system for trainees, not in TULIP.
Comment: One commenter asked if the CBT would be mandatory.
Response: No changes to the rules are necessary. A NATCEP is not required to use the CBT--only to accept the results of those applicants who do choose to use it. NATCEPs may still utilize the classroom training for trainees who opt for that instead of the CBT.
Comment: One commenter asked what benefits would be conferred by offering the option of CBT without a change to pay or promotional education.
Response: No changes to the rules are necessary. The benefits are to provide more flexibility and a free option for part of the training, at the trainee's own pace.
Comment: One commenter asked who would develop the CBT and what the passing standards for it would be.
Response: No changes to the rules are necessary. HHSC is developing the CBT and is not changing the passing standards for the written portion of the training.
Comment: One commenter requested clarification regarding credentialing requirements for a NATCEP instructor and program director.
Response: No changes to the rules are necessary. These requirements are delineated at §556.5(a) - (d).
Comment: One commenter asked how long the CBT would be valid for.
Response: No changes to the rules are necessary. As required in §556.3(n), the NATCEP must ensure that the trainee completes the classroom portion of the training within the preceding 12 months.
Comment: Four commenters suggested indicating in the rules who nurse aide trainees should contact for technical assistance with the CBT.
Response: The rulemaking process does not encompass including information on technical assistance in the rules. HHSC will publish resources for troubleshooting technical issues.
Comment: One commenter had a concern regarding amended §556.3(n), stating that holding NATCEPs responsible for ensuring that trainees complete 60 hours of classroom training in CBT appears to be unfair, as the NATCEP would not provide this.
Response: HHSC declines to make changes to the rule in response to this comment. The NATCEP is responsible for determining that a trainee has completed the CBT by obtaining and retaining the trainee's certificate of CBT completion.
Comment: Four commenters requested that HHSC include in amended §556.3(n) that a NATCEP may, at its discretion, require a nurse aide trainee to demonstrate competency in the classroom portion of the training.
Response: HHSC declines to make this change. If trainees complete the CBT and provide the NATCEP their certificate of CBT completion, this demonstrates their competency in the training's classroom portion.
Comment: Four commenters requested an addition to amended §556.3(n) to state that if trainees request to be re-trained in the didactic portion, fail competency assessment, or fail the written exam, then the NATCEP may re-train them at a cost decided by the NATCEP.
Response: HHSC declines to make this change to the rule. The rule does not prohibit a nurse aide trainee from requesting re-training that is not CBT. If a trainee requests re-training from the NATCEP, this is a business decision between the trainee and the NATCEP.
Comment: Regarding amended §556.3(n)(1)(B), four commenters asked HHSC to consider requiring the nurse aide trainee to engage or select a NATCEP for the clinical portion of the training upon enrollment in the CBT, to ensure that the NACTEP follows up with the trainee.
Response: No changes to the rule are necessary. HHSC will issue guidance, including a recommendation that trainees select and contact a NATCEP for the clinical training upon starting the CBT.
Comment: Four commenters advocated adding to amended §556.3(n)(2) that a portion of the 40 hours of clinical training include skills training must be in a laboratory or classroom setting, such as the NATCEP itself.
Response: HHSC declines to make this change. HHSC allows the use of laboratory settings in clinical training in certain circumstances, as described in §556.3(e). The NATCEP may structure its program as it deems appropriate, within the parameters described in Chapter 556. The rules do not prohibit using a variety of training methods.
Comment: One commenter proposed that HHSC include a statement in §556.3(n)(2) that a NATCEP may charge for the clinical portion of the training.
Response: HHSC does not require NATCEPs to charge any fees and declines to change the rule in response to this comment. HHSC does not regulate how private businesses structure their business model or fees. Additionally, some NACTEPs--including those operated by nursing facilities under a Medicaid contract and public high schools--do not charge any fees for the training provided. NATCEPs may choose to operationalize their businesses as they deem appropriate and may make changes to their business practices including any fees associated with the services provided.
Comment: One commenter expressed concern regarding proposed §556.3(q), asserting that requiring a NATCEP to accept trainees who have completed the CBT is not allowing the NATCEP to determine who it admits to its program. The commenter asked that HHSC remove this language.
Response: HHSC declines to make this change. If trainees pass the CBT and opt to complete their clinical training at a NATCEP, the NATCEP cannot deny admitting them because they made use of the CBT option.
STATUTORY AUTHORITY
The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §250.0035(d), which stipulates that the Executive Commissioner of HHSC shall adopt rules necessary to implement §250.0035, related the issuance and renewal of certificates of registration and the regulation of nurse aides as necessary to protect the public health and safety.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 26, 2024.
TRD-202400833
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: March 17, 2024
Proposal publication date: October 27, 2023
For further information, please call: (512) 438-3161