The Texas Health and Human Services Commission (HHSC) adopts new Subchapter A, concerning General Provisions, to include all rules currently in Chapter 351, except §351.3. HHSC adopts amendments to §351.2, concerning Petition for the Adoption of a Rule; the repeal of §351.3, concerning Purpose, Task and Duration of Advisory Committees; and new Subchapter B, concerning Advisory Committees, §§351.801, 351.803, 351.805, 351.807, 351.809, 351.811, 351.813, 351.815, 351.817, 351.819, 351.821, 351.823, 351.825, 351.827, 351.829, 351.831, 351.833, 351.835, and 351.837. Sections 351.2, 351.3, 351.801, 351.803, 351.807, 351.809, 351.811, 351.813, 351.815, 351.817, 351.819, 351.821, 351.823, 351.825, 351.829, 351.831, 351.833, 351.835, and 351.837 are adopted without changes to the proposed text as published in the April 15, 2016, issue of the Texas Register (41 TexReg 2641) and will not be republished. Section 351.805 and §351.827 are adopted with changes and will be republished.

BACKGROUND AND JUSTIFICATION

Senate Bill (S.B.) 200 and S.B. 277, 84th Legislature, Regular Session, 2015, removed 38 advisory committees from statute and authorized the HHSC Executive Commissioner to reestablish committees in rule. As part of implementing this directive, HHSC evaluated the ongoing need for each advisory committee and requested stakeholder feedback. After the HHSC Executive Commissioner reviewed this information and made final decisions, HHSC published a list of committees that were either consolidated in some way, continued as they are currently, or discontinued. The list of committees that will be continued was posted in the Texas Register on October 30, 2015 (40 TexReg 7726). The adopted new rules include a new rule for each committee, including information such as purpose, tasks, and membership.

The amendments to §351.2, concerning Petition for the Adoption of a Rule, update outdated language in the rule, such as references to the Texas Board of Health.

COMMENTS

The 30-day comment period ended May 16, 2016. During this period, HHSC received a comment regarding the new rules from one commenter, the Coalition for Nurses in Advanced Practice. A summary of the comment and HHSC's response follows.

Comment: Regarding proposed §351.827 (Palliative Care Interdisciplinary Advisory Council), the commenter suggests amending proposed §351.827(d)(2)(C)(i) to add "or practitioner" after the word "physician" because hospice rules refer to "attending physician" and "attending practitioner" as synonymous terms.

Response: HHSC revised the rule as suggested.

HHSC revised proposed §351.805(a), (d), and (e)(2) (State Medicaid Managed Care Advisory Committee) on its own motion to cite Texas Government Code §533.041(a). Following the enactment of S.B. 200, it is unclear whether any part of §533.041 other than subsection (a) survives: Section 3.40(a)(18) of the bill repealed Texas Government Code Chapter 533, Subchapters B and C in their entirety, including §533.041. Section 2.24 of the same bill, on the other hand, expressly amended Texas Government Code §533.041(a). HHSC thus believes that §533.041(a) continues in existence despite the general repeal. See Tex. Gov't Code §311.025 (stating that irreconcilable amendments adopted during the same legislative session should be harmonized if possible so that each may be given effect). HHSC need not here decide whether any other portion of §533.041 remains in effect.

STATUTORY AUTHORITY

The new rules are adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas; and Texas Government Code §531.012(c), which requires the Executive Commissioner to adopt rules governing advisory committees that are established under §531.012.