Proposed Rules Title 25

TITLE 25. HEALTH SERVICES

PART 1. DEPARTMENT OF STATE HEALTH SERVICES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §448.801, concerning Screening; §448.803, concerning Assessment; and §448.911, concerning Treatment Services Provided by Electronic Means.

BACKGROUND AND PURPOSE

This proposal is necessary to comply with and implement House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021. H.B. 4, Section 2, amended Texas Government Code Chapter 531 to require HHSC to determine which services are cost-effective and clinically effective and adopt rules to develop and implement a system to allow providers to provide certain behavioral health services using audio-only means to an individual receiving those services. The proposed amendments allow a chemical dependency treatment facility (CDTF) to deliver certain audio-only substance use disorder treatment services that HHSC determined are clinically effective and safe.

The proposal also updates the requirements for providing services through electronic means to increase clarity and readability.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §448.801 requires a provider screening an individual through electronic means to screen the individual using synchronous audio-visual technology, except under certain circumstances when a provider may screen an individual using audio-only technology during a declared state of disaster.

The proposed amendment to §448.803 requires a provider assessing a client through electronic means to assess the client using synchronous audio-visual technology, except under certain circumstances when a provider may assess a client using audio-only technology during a declared state of disaster.

The proposed amendment to §448.911 defines several terms, allows a licensed outpatient CDTF program to provide individual and group counseling services using synchronous audio-only technology, and updates and clarifies other requirements for providing services through electronic means, including requiring a CDTF providing services through electronic means to be equipped to provide in-person services at the program's physical location at a client's request.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will not expand, limit, or repeal existing rules;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the proposed rules do not impose a cost and providing services through electronic means and using synchronous audio-only technology as described in the proposed rules is optional for CDTFs.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public will benefit from rules that expand treatment services by allowing a CDTF to offer audio-only treatment services under certain circumstances. The public will also benefit from increased clarity regarding requirements for services provided through electronic means.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because participation in providing the services through electronic means and using synchronous audio-only technology as described in the proposed rules is optional.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to the owner's property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to HCR_PRU@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 23R028" in the subject line.

SUBCHAPTER H. SCREENING AND ASSESSMENT

25 TAC §448.801, §448.803

STATUTORY AUTHORITY

The amendments are 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, and Texas Health and Safety Code Chapter 462, which authorizes the Executive Commissioner to adopt rules governing the treatment of persons with chemical dependencies; and Chapter 464, which authorizes the Executive Commissioner to adopt rules governing the organization and structure, policies and procedures, staffing requirements, services, client rights, records, physical plant requirements, and standards for licensed CDTFs.

The amendments implement Texas Government Code §531.0055 and Texas Health and Safety Code Chapters 462 and 464.

§448.801.Screening.

(a) To be eligible for admission to a treatment program, an individual must [~~shall~~] meet the current Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria for substance use disorders (or substance withdrawal or intoxication in the case of a detoxification program). The facility shall use a screening process appropriate for the target population, individual's age, developmental level, culture, and gender, which includes the Texas Department of Insurance (TDI) criteria to determine eligibility for admission or referral including an assessment of the client's financial resources and insurance benefits.

(b) The screening process shall collect other information as necessary to determine the type of services that are required to meet the individual's needs. This may necessitate the administration of all or part of validated assessment instruments.

(d) Sufficient documentation shall be maintained in the client record to support the diagnosis and justify the referral or placement [~~referral/placement~~] decision. Documentation shall include the date of the screening and the signature and credentials of the Qualified Credentialed Counselor (QCC) supervising the screening process.

(e) For admission to a detoxification program, the screening will be conducted by a physician, physician assistant, nurse practitioner, registered nurse, or licensed vocational nurse (LVN). An LVN may conduct a screening under the following conditions:

(1) the LVN has completed detoxification training and demonstrated competency in the detoxification process;

(2) the training and competency verification is documented in the LVN's personnel file;

(3) the LVN shall convey in person or via telephone the medical data obtained during the screening process to a physician, who [~~in person or via telephone. The physician~~] shall determine the appropriateness of the admission and authorize the admission or give instructions for an alternative course of action; and

(4) the physician shall examine the client in person and sign the admission order within 24 hours of authorizing admission.

(f) For admission to all other treatment programs, the screening will be conducted by a counselor or counselor intern.

(g) A detoxification program shall not offer screenings through electronic means.

(h) A treatment program, other than a detoxification program, may offer screenings in-person and face-to-face, or through electronic means, as that term is defined by §448.911(a)(1) of this chapter (relating to Treatment Services Provided by Electronic Means). A facility offering [~~that offers~~] screenings through electronic means shall comply with the applicable requirements under §448.911 of this chapter and the following requirements.[:]

(1) A counselor intern must have more than 2,000 hours of supervised work experience or have a supervised work experience waiver under §140.408(b) of this title (relating to Requirements for LCDC Licensure) and must have passed the chemical dependency counselor licensing exam prior to screening an individual [~~conducted~~ ] through electronic means.

(2) A counselor or counselor intern screening an individual through electronic means shall use synchronous audiovisual technology, as that term is defined by §448.911(a)(4) [~~comply with the requirements under §448.911~~] of this chapter, except as provided under paragraph (3) of this subsection [~~(relating to Treatment Services Provided by Electronic Means)~~].

(3) To the extent allowed by federal law and only when all the following criteria are met, the counselor or counselor intern may screen an individual using synchronous audio-only technology, as that term is defined by §448.911(a)(3) of this chapter, when:

(A) the screening occurs during a declared state of disaster under Texas Government Code §418.014 (relating to Declaration of State of Disaster) in the county in which the facility where the client signed the client's consent for treatment form is located;

(B) the counselor or counselor intern determines and documents a justification for their determination in the individual's record that screening the individual using synchronous audio-only technology is safe and clinically appropriate for the individual being screened; and

(C) the individual being screened agrees and provides verbal consent, as that term is defined by §448.911(a)(5) of this chapter, to participate in a screening using synchronous audio-only technology.

(4) [~~(2)~~] The counselor or counselor intern [~~facility~~] shall conduct an in-person and face-to-face screening with an individual at the individual's request or if the individual does not provide their verbal consent to participate in a screening through electronic means.

§448.803.Assessment.

(a) A counselor or counselor intern shall conduct and document a comprehensive psychosocial assessment with the client admitted to the facility. The assessment shall document and elicit enough information about the client's past and present status to provide a thorough understanding of the following areas:

(1) presenting problems resulting in admission;

(2) alcohol and other drug use;

(3) psychiatric and chemical dependency treatment;

(4) medical history and current health status, to include an assessment of Tuberculosis (TB), HIV and other sexually transmitted disease (STD) risk behaviors as permitted by law;

(5) relationships with family;

(6) social and leisure activities;

(7) education and vocational training;

(8) employment history;

(9) legal problems;

(10) mental/emotional functioning; and

(11) strengths and weaknesses.

(b) The counselor or counselor intern may conduct the assessment with a client in-person and face-to-face, or through electronic means, as that term is defined by §448.911(a)(1) of this chapter (relating to Treatment Services Provided by Electronic Means). A facility offering [~~that offers~~] assessments through electronic means shall comply with the applicable requirements under §448.911 of this chapter and the following requirements.

(2) A counselor or counselor intern assessing a client [~~An assessment conducted~~] through electronic means shall use synchronous audiovisual technology, as that term is defined by §448.911(a)(4) of this chapter, except as provided under paragraph (3) of this subsection [~~comply with the requirements under §448.911 of this chapter (relating to Treatment Services Provided by Electronic Means).~~].

(3) To the extent allowed by federal law and only when all the following criteria are met, the counselor or counselor intern may assess a client using synchronous audio-only technology, as that term is defined by §448.911(a)(3) of this chapter, when:

(A) the assessment occurs during a declared state of disaster under Texas Government Code §418.014 (relating to Declaration of State of Disaster) in the county in which the facility where the client signed their consent for treatment form is located;

(B) the counselor or counselor intern determines and documents a justification for their determination in the client's record that assessing the client using synchronous audio-only technology is safe and clinically appropriate for the client being assessed; and

(C) the client being assessed agrees and provides verbal consent, as that term is defined by §448.911(a)(5) of this chapter, to participate in an assessment using synchronous audio-only technology.

(4) [~~(3)~~] The counselor or counselor intern [~~facility~~] shall conduct an in-person and face-to-face assessment with a client [~~an individual~~] at the client's [~~individual's~~] request or if the client does not provide their verbal consent to participate in an assessment through electronic means.

(d) The assessment shall result in a comprehensive diagnostic impression. The diagnostic impression shall correspond to current Diagnostic and Statistical Manual of Mental Disorders (DSM) standards.

(e) If the assessment identifies a potential mental health problem, the facility shall obtain a mental health assessment and seek appropriate mental health services when resources for mental health assessments or [~~and/or~~] services, or both, are available internally or through referral at no additional cost to the program. These services shall be provided by a facility or person authorized to provide such services or a qualified professional as described in §448.901 of this chapter (relating to Requirements Applicable to all Treatment Services).

(f) The assessment shall be signed by a QCC and filed in the client record within three individual service days of admission.

(g) The program may accept an evaluation from an outside source if:

(1) it meets the criteria set forth herein;

(2) it was completed during the 30 days preceding admission or is received directly from a facility that is transferring the client; and

(3) a counselor reviews the information with the client and documents an update.

(h) For residential clients, a licensed health professional shall conduct a health assessment of the client's physical health status within 96 hours of admission. The facility may accept a health assessment from an outside source completed no more than 30 days before admission or received directly from a transferring facility. If the client has any physical complaints or indications of medical problems, the client shall be referred to a physician, physician assistant, or nurse practitioner for a history and physical examination. The examination, if needed, shall be completed within a reasonable time frame and the results filed in the client record.

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

Filed with the Office of the Secretary of State on October 24, 2023.

TRD-202303914

Karen Ray

Chief Counsel

Department of State Health Services

Earliest possible date of adoption: December 10, 2023

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

SUBCHAPTER I. TREATMENT PROGRAM SERVICES

25 TAC §448.911

STATUTORY AUTHORITY

The amendment 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, and Texas Health and Safety Code Chapter 462, which authorizes the Executive Commissioner to adopt rules governing the treatment of persons with chemical dependencies; and Chapter 464, which authorizes the Executive Commissioner to adopt rules governing the organization and structure, policies and procedures, staffing requirements, services, client rights, records, physical plant requirements, and standards for licensed CDTFs.

The amendment implements Texas Government Code §531.0055 and Texas Health and Safety Code Chapters 462 and 464.

§448.911.Treatment Services Provided Through [by] Electronic Means.

(a) In this section, the following words and terms have the following meanings:

(1) Electronic means--Live, synchronous, interactive treatment program services delivered using telecommunications or information technology by a health professional licensed, certified, or otherwise entitled to practice in this state and acting within the scope of the health professional's license, certification, or entitlement to a patient at a different physical location than the health professional. This term includes services delivered using synchronous audiovisual technology or synchronous audio-only technology but does not include pre-recorded videos.

(2) Existing clinical relationship--A relationship that occurs when a person has received at least one in-person or synchronous audiovisual treatment service from the same provider within the six months prior to the initial service delivered by synchronous telephone (audio-only) technology.

(3) Synchronous audio-only technology--An interactive, two-way audio telecommunications platform, including telephone technology, that uses only sound and meets the privacy requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

(4) Synchronous audiovisual technology--An interactive, two-way audio and video telecommunications platform that meets HIPPA privacy requirements.

(5) Verbal consent--Spoken agreement of a client, a client's legally authorized representative, or a client's medical consenter to participate treatment services through electronic means.

(b) [~~(a)~~] Except as provided under §448.801 of this chapter (relating to Screening) and §448.803 of this chapter (relating to Assessment), only a [A] licensed [~~treatment program may provide~~] outpatient chemical dependency treatment program may provide treatment program services through [by] electronic means [~~provided the criteria outlined in this section are addressed~~].

(c) [~~(1)~~] The program providing treatment services through electronic means [~~Services~~] may provide treatment services [~~be provided~~] to adult and adolescent clients to the extent allowed by the facility's license and shall comply with all requirements of this section.[~~; and~~]

(d) [~~(2)~~] The program shall ensure only the following individuals provide services through electronic means under this section: [~~Services shall be provided by~~]

(1) a qualified credentialed counselor (QCC); or [by]

(2) a counselor intern who has [~~with~~] more than 2,000 hours of supervised work experience or a supervised work experience waiver under §140.408(b) of this title (relating to Requirements for LCDC Licensure) and who has passed the chemical dependency counselor licensing exam.

(e) The program's physical location shall be equipped to provide in-person, face-to-face treatment services with an individual at the individual's request.

(f) [~~(b)~~] The program shall ensure all [~~All~~] treatment sessions shall have the following two forms of access control [~~as follows~~]:

(1) all electronic [~~on-line~~] contact between a QCC and clients shall [~~must~~] begin with a verification of the client through a name, password or pin number; and

(2) security as detailed in HIPAA [~~the Health Insurance Portability and Accountability Act of 1996 (HIPAA)~~].

(g) [~~(c)~~] A facility shall [~~must~~] implement adequate security and encryption measures to ensure all patient communications, recordings and records are protected and adhere to [~~are in adherence with~~] federal and state privacy laws, including HIPAA and Texas Health and Safety Code Chapters 181, 464, and 466 (relating to Medical Records Privacy; Facilities Treating Persons with a Chemical Dependency, and Regulation of Narcotic Drug Treatment Programs).

(h) [~~(d)~~] A program [~~Programs~~] shall maintain compliance with HIPAA and [~~Title 42 of the~~] Code of Federal Regulations (CFR) Title 42, Part 2 (relating to Confidentiality of Substance Use Disorder Patient Records).

(i) [~~(e)~~] A program [~~Programs~~] shall not use e-mail communications containing client identifying information.

(j) [~~(f)~~] A program [~~Programs~~] shall use synchronous audiovisual technology, except as provided in subsection (k) of this section [~~audio and video in real time~~].

(k) A program may provide outpatient individual and group counseling to clients using synchronous audio-only technology only when all the following criteria are met:

(1) the client and provider have an existing clinical relationship;

(2) the provider receives the client's verbal consent before each session; and

(3) the provider documents in the client's record the specific reason why the provider provided outpatient counseling services using synchronous audio-only technology.

(l) [~~(g)~~] A program [~~Programs~~] shall ensure timely access to individuals qualified in the technology as backup for systems problems.

(m) [~~(h)~~] A program [~~Programs~~] shall develop a contingency plan and maintain alternate means of communication for clients when technical problems occur during the provision of services.

(n) [~~(i)~~] A program [~~Programs~~] shall provide individuals and clients with a description of all services offered.

(o) [~~(j)~~] A program [~~Programs~~] shall provide developed [~~develop~~] criteria, in addition to the Diagnostic and Statistical Manual of Mental Disorders [~~DSM~~], to assess clients for appropriateness of utilizing electronic services.

(p) [~~(k)~~] A program [~~Programs~~] shall provide appropriate referrals for clients who do not meet the criteria for services.

(q) [~~(l)~~] A program [~~Programs~~] shall develop a grievance procedure and provide the website and phone number [~~a link~~] to the Texas Health and Human Services Commission (HHSC) for filing a complaint [~~when using the Internet or HHSC's toll-free number when counseling by telephone~~].

(r) [~~(m)~~] Prior to clients engaging in electronic [~~Internet~~] services, a program [~~programs~~] shall describe and provide in writing the potential risks to clients. The risks shall address at a minimum the following [~~these~~] areas:

(1) clinical aspects;

(2) security; and

(3) confidentiality.

(s) In a HIPAA-compliant manner, a program shall document and maintain in a client's record the client's verbal consent to participate in services provided through electronic means. The program shall provide the verbal consent documentation to HHSC upon request.

(t) A program shall explain to the client or the client's legally authorized representative what verbal consent means and to what the client or client's legally authorized representative is consenting. The verbal consent a client provides when electing to participate in a treatment service delivered through electronic means only applies to one treatment service at a time. A program shall obtain the client's verbal consent before the client receives each service through electronic means.

(u) If the program does not obtain verbal consent for a treatment service through electronic means, the program shall provide the service to the client in-person and face-to-face.

(v) A program shall inform a client who chooses to receive services through electronic means that the program will:

(1) monitor services for evidence of fraud, waste, and abuse;

(2) determine whether the client needs additional social services or supports;

(3) ensure the provider documents, in writing and in the client's record, the client's verbal consent to participate in services provided through electronic means; and

(4) adhere to HIPPA, including using HIPAA-compliant technology for services provided through electronic means.

(w) [~~(n)~~] A program [~~Programs~~] shall create safeguards to ensure adolescents receive treatment services separately from adults and verify a client's identity and the identity of any authorized participant.

(x) [~~(o)~~] A program [~~Programs~~] shall provide clients with information to access online or a copy of the current version of the following chemical dependency treatment facility (CDTF) rules, statutes, and federal regulations to notify clients of applicable rules and laws regarding CDTFs:

(1) This chapter;

(2) Texas Health and Safety Code Chapter 464; and

(3) 42 CFR Part 2.

(y) [~~(p)~~] A program [~~Programs~~] shall provide the program's emergency contact information to the client.

(z) [~~(q)~~] A program [~~Programs~~] shall maintain resource information for the local area of the client.

(aa) [~~(r)~~] A program [~~Programs~~] shall provide reasonable Americans with Disabilities Act of 1990 (ADA) accommodations for clients upon request.

(bb) [~~(s)~~] A program shall be located [~~Programs must reside~~] and perform services in Texas.

(cc) [~~(t)~~] HHSC maintains the authority to regulate the program regardless of the location of the client.

(dd) [~~(u)~~] The facility shall provide the facility's emergency contact information to the client.

(ee) [~~(v)~~] The facility shall maintain resource information for the local area of the client.