TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 62. CODE ENFORCEMENT OFFICERS

16 TAC §§62.1, 62.10, 62.20 - 62.25, 62.30, 62.65, 62.70 - 62.72, 62.80, 62.90, 62.91

The Texas Department of Licensing and Regulation (Department) proposes new rules at 16 Texas Administrative Code (TAC), Chapter 62, §§62.1, 62.10, 62.20 - 62.25, 62.30, 62.65, 62.70 - 62.72, 62.80, 62.90 and 62.91, regarding the Code Enforcement Officers program.

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the Department of State Health Services (DSHS) to the Texas Commission of Licensing and Regulation (Commission) and the Department. The Commission and Department completed the Phase 1 transition of seven programs on October 3, 2016.

Under Phase 2, the following six programs are being transferred from DSHS to the Commission and the Department: (1) Laser Hair Removal, Texas Health and Safety Code, Chapter 401, §§401.501 - 401.522; (2) Massage Therapy, Texas Occupations Code, Chapter 455; (3) Code Enforcement Officers, Texas Occupations Code, Chapter 1952; (4) Sanitarians, Texas Occupations Code, Chapter 1953; (5) Mold Assessors and Remediators, Texas Occupations Code, Chapter 1958; and (6) Offender Education Programs, Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). The statutory amendments transferring regulation of these six Phase 2 programs from DSHS to the Commission and the Department will take effect on September 1, 2017.

The new rules are proposed to enable the Commission and the Department to regulate the six Phase 2 programs listed above. The proposed new rules provide for the Department to perform the various functions, including licensing, compliance, and enforcement, necessary to regulate these transferred programs. The anticipated effective date of the proposed rules is November 1, 2017. The effective date will coincide with the completion of the transfer of the programs to the Commission and the Department.

The proposed new rules under 16 TAC Chapter 62 are necessary to implement S.B. 202 and to regulate the Code Enforcement Officers program under the authority of the Commission and the Department. These proposed new rules are separate from and are not to be confused with the DSHS rules located at 25 TAC Chapter 140, Subchapter D, regarding the Code Enforcement Officers program, which are still in effect.

The Department held public summits on March 6, 2017, in Arlington, Texas; March 8, 2017, in Houston, Texas; and March 10, 2017, in Austin, Texas, to get initial feedback on a draft of the proposed rules prior to publication of the proposed rules in the Texas Register.

The proposed new §62.1 provides the statutory authority for the Commission and the Department to regulate code enforcement officers.

The proposed new §62.10 creates the definitions to be used in the code enforcement officers program.

The proposed new §62.20 states the criteria for registration as a code enforcement officer or code enforcement officer in training; creates a process allowing a code enforcement officer in training to upgrade a registration to that of code enforcement officer; and requires the department to grant a certificate of registration to a licensee or registrant of another state that has requirements for the licensing or registration of a code enforcement officer that are at least equivalent to those of this state.

The proposed new §62.21 states the criteria for taking a department examination; requires compliance with the department's examination requirements; and states that cheating on a department examination is grounds for denial, suspension, or revocation of a registration and/or assessment of an administrative penalty.

The proposed new §62.22 states that a code enforcement officer registration expires two years from the date of issuance, and may be renewed biennially; a code enforcement officer in training registration expires one year from the date of issuance, and may be renewed annually; and that a registration is not transferable.

The proposed new §62.23 requires an applicant for a code enforcement officer or code enforcement officer in training registration to complete a 36-hour training program in code enforcement from an educational institution accredited or licensed by the Texas Education Agency or Texas Higher Education Coordinating Board. The proposed rule also defines a number of topics that must be covered in the training program.

The proposed new §62.24 sets out the continuing education requirements that must be met by a code enforcement officer or code enforcement officer in training in order to renew a registration.

The proposed new §62.25 states the requirements for renewal of a code enforcement officer or code enforcement officer in training registration.

The proposed new §62.30 restates the statutory exemptions from registration.

The proposed new §62.65 establishes the Code Enforcement Officers Advisory Committee to provide advice and recommendations to the department on technical matters relevant to the administration of the code enforcement officers program. The proposed rule also states the structure of the board and sets out requirements for members' terms, appointment of a presiding officer, quorum, and removal of members.

The proposed new §62.70 states the general standards of conduct for engaging in code enforcement activities. The proposed rule states a number of requirements and prohibited acts for persons engaged in code enforcement.

The proposed new §62.71 sets out the responsibilities of persons who supervise code enforcement officers in training. The proposed rule states the qualifications of a supervisor, establishes prohibited conduct, and requires supervisors to notify the department when supervision of a code enforcement officer in training ceases.

The proposed new §62.72 lists the responsibilities of code enforcement officers in training (supervisees) under the supervision of a registered code enforcement officer. The proposed rule requires a supervisee to maintain current information with the department regarding the details of the supervisee's work and supervision. The proposed rule also defines prohibited conduct.

The proposed new §62.80 states the fees to be charged by the department for registration, renewal, upgrades, duplicate registrations, dishonored payment devices, and criminal history evaluation letters.

The proposed new §62.90 authorizes the imposition of administrative penalties or other sanctions against persons who violate program rules, Chapters 51 or 1952 of the Texas Occupations Code, or any rule or order of the commission or executive director.

The proposed new §62.91 states that the enforcement authority granted under Texas Occupations Code Chapters 51 and 1952 and any associated rules may be used to enforce those chapters and these rules.

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed new rules are in effect, there will be no additional estimated costs or reductions in costs to the State or local government as a result of enforcing or administering these rules. However, the proposed rules increase the upgrade fee for code enforcement officers in training. The DSHS fee is $20 and the proposed fee is $25. In Fiscal Year 2016, DSHS upgraded 23 code enforcement officers in training. Estimates using last year's numbers would result in an increase of revenue to the state of $115 per fiscal year for the first five years the rules are in effect. The proposed rules also allow for the Department's standard program fees to include a dishonored payment device fee of $50; a criminal history evaluation letter fee of $25; and a duplicate license fee of $25. The Department does not anticipate a significant increase of revenue as a result of these fees because they are discretionary based on the needs and actions of licensees. There is no estimated decrease in revenue as a result of these proposed rules. Additionally, there is no estimated loss or increase in revenue to local government as a result of the proposed rules.

Mr. Francis also has determined that for each year of the first five-year period the proposed new rules are in effect, the public benefit will include that the rules implement the statutory requirements under the authority of the Commission and the Department and provide details that are not found in the enabling acts. The rules also have been formatted and organized to assist the public, the regulated community, and the Department in easily finding specific rules. In addition, the new rules are streamlined so as not to duplicate provisions that are already located in the statutes and rules of the Commission and Department in Texas Occupations Code, Chapter 51 and in 16 TAC Chapter 60, which apply to all programs regulated by the Commission and the Department.

There will be no adverse effect on small or micro-businesses as a result of the proposed new rules. There are no anticipated economic costs to persons who are required to comply with the proposed new rules. The above mentioned standard program fees are discretionary and will not constitute a burden considering a minimal number of licensees might need to pay them based on the needs and actions of the individuals and licensees.

Since the agency has determined that the proposed new rules will have no adverse economic effect on small or micro-businesses, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, under Texas Government Code §2006.002, is not required.

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032; or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The new rules are proposed under Texas Occupations Code, Chapters 51 and 1952, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 1952. No other statutes, articles, or codes are affected by the proposal.

§62.1.Authority.

These rules are promulgated under the authority of the Texas Occupations Code, Chapters 51 and 1952.

§62.10.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Occupations Code, Chapter 1952, concerning the registration of code enforcement officers.

(2) Advisory Committee--The Code Enforcement Officers Advisory Committee.

(3) Applicant--A person who applies for registration under the Act.

(4) Code enforcement--The inspection, improvement, and rehabilitation of environmental hazards in public and private premises by determining the presence of fire or health hazards, nuisance violations, unsafe building conditions, and violations of any fire, health, or building regulation, statute, or ordinance.

(5) Code enforcement officer--An agent of this state or a political subdivision of this state who engages in code enforcement. This term does not include an agent of an agency of the federal government.

(6) Code enforcement officer in training (also referred to as Supervisee)--An agent of this state or a political subdivision of this state who engages in code enforcement under the supervision of a code enforcement officer. This term does not include an agent of an agency of the federal government.

(7) Commission--The Texas Commission of Licensing and Regulation.

(8) Department--The Texas Department of Licensing and Regulation.

(9) Executive Director--The executive director of the Texas Department of Licensing and Regulation.

(10) Full-time experience--Employment, self-employment, or independent contracting in the field of code enforcement where the regularly assigned duties include code enforcement for a minimum of 32 hours per week.

(11) Registrant--A person registered under the Act.

(12) Supervisor--A code enforcement officer who supervises one or more code enforcement officers in training.

§62.20.Registration Requirements--Applicant and Experience Requirements. (a) To be registered as a code enforcement officer, an applicant must:

(1) submit a completed application on a department-approved form;

(2) possess at least one year of full-time experience in the field of code enforcement on the date the application is filed with the department;

(3) successfully pass a criminal history background check;

(4) pass the required examination;

(5) submit the fee required by §62.80;

(6) successfully complete the training program described in §62.23; and

(7) complete all requirements within one year of the date the application is filed.

(b) To be registered as a code enforcement officer in training, an applicant must:

(1) submit a completed application on a department-approved form;

(2) successfully pass a criminal history background check;

(3) submit a completed verification of supervision form, which shall include:

(A) The name of the applicant and each supervisor;

(B) The registration number of each supervisor;

(C) The primary location and address from which code enforcement services will be provided; and

(D) A description of code enforcement duties to be rendered by the applicant.

(4) pass the required examination;

(5) submit the fee required by §62.80;

(6) successfully complete the training program described in §62.23; and

(7) complete all requirements within one year of the date the application is filed.

(c) A registered code enforcement officer in training who has obtained the experience necessary to qualify as a code enforcement officer may file an application to upgrade a registration to that of code enforcement officer. Upon payment of the required fee and approval by the department, the applicant shall be granted registration as a code enforcement officer.

(d) On proper application, the department shall grant a certificate of registration to a licensee or registrant of another state that has requirements for the licensing or registration of a code enforcement officer that are at least equivalent to those of this state.

(e) An applicant must submit proper, verifiable documentation as prescribed by the department to receive credit for the amount and type of practical experience and education claimed by the applicant.

§62.21.Registration Requirements--Examinations.

(a) An applicant who meets the criteria for registration set forth in §62.20 shall be eligible for a department examination.

(b) A person taking an examination must comply with the department's examination requirements under Chapter 60, Subchapter E of this title.

(c) Cheating on an examination is grounds for denial, suspension, or revocation of a registration and/or assessment of an administrative penalty.

§62.22.Registration Requirements--General.

(a) A code enforcement officer registration expires two years from the date of issuance, and may be renewed biennially.

(b) A code enforcement officer in training registration expires one year from the date of issuance, and may be renewed annually.

(c) A registration is not transferable.

§62.23.Registration Requirements--Education.

(a) An applicant must complete a training program in code enforcement from an educational institution accredited or licensed by the Texas Education Agency or Texas Higher Education Coordinating Board.

(b) The program shall include, but shall not be limited to, training in the following subjects:

(1) zoning and zoning ordinance enforcement;

(2) sign regulations;

(3) home occupations;

(4) housing codes and ordinances;

(5) building abatement;

(6) nuisance violations;

(7) abandoned vehicles;

(8) junk vehicles;

(9) health ordinances; and

(10) basic processes of law related to code enforcement.

(c) The program shall consist of 36 classroom or laboratory hours. A classroom or laboratory hour shall constitute 50 minutes of actual classroom or laboratory time.

§62.24.Continuing Education.

(a) Each registered code enforcement officer must complete at least twelve continuing education hours as set forth in this section within the 24 months preceding renewal of a registration, at least one hour of which must be in legal or legislative issues as provided in subsection (i)(12).

(b) Each registered code enforcement officer in training must complete at least six continuing education hours as set forth in this section within the twelve months preceding renewal of a registration, at least one hour of which must be in legal or legislative issues as provided in subsection (i)(12).

(c) A code enforcement officer in training who applies to upgrade a registration pursuant to §62.20 is not required to submit continuing education hours in order to upgrade.

(d) Only continuing education activities conducted in accordance with this section shall be considered approved by the department and may be represented to the public as acceptable for registration renewal for registered code enforcement officers and code enforcement officers in training in Texas.

(e) Department-approved continuing education activities for registration renewal may include the following:

(1) conferences;

(2) home-study training modules (including professional journals requiring successful completion of a test document);

(3) lectures;

(4) panel discussions;

(5) seminars;

(6) accredited college or university courses;

(7) video or film presentations with live instruction;

(8) field demonstrations;

(9) teleconferences; or

(10) other activities approved by the department.

(f) Only the following continuing education activities shall serve as a basis for registration renewal:

(1) approved by the department or its designee in accordance with this section; or

(2) approved by another professional regulatory agency in the State of Texas as acceptable continuing education for registration renewal; and

(3) covering one or more of the curriculum areas listed in subsection (i).

(g) Continuing education activities must meet the following criteria in order to be accepted for continuing education credit:

(1) the activity must cover one or more of the curriculum areas listed in subsection (i);

(2) the activity must be conducted by an organization which is:

(A) an accredited college or university;

(B) a governmental agency, including local, state or federal agencies;

(C) an association with a membership of 25 or more persons, or its affiliate; or

(D) a commercial education business;

(3) the activity must have a record-keeping procedure which includes a register of who took the course and the number of continuing education hours earned;

(4) the organization must implement procedures for verifying participant attendance;

(5) the activity must be at least 50 minutes in length of actual instruction time. Round-table discussions and more than one speaker for the total of 50 minutes per activity is permissible. No credit will be given for time used for other non-relevant activities; and

(6) the activity must be conducted in compliance with all applicable federal and state laws, including the Americans with Disabilities Act requirements for access to activities.

(h) Commercial education businesses shall submit a request for approval on department forms, and shall not represent any course as approved until such approval is granted by the department in writing.

(i) The curriculum of an approved activity must include one or more of the following subjects:

(1) zoning and zoning ordinance enforcement;

(2) sign regulations;

(3) home occupations;

(4) housing codes and ordinances;

(5) building abatement;

(6) nuisance violations;

(7) abandoned vehicles;

(8) junk vehicles;

(9) health ordinances;

(10) basic processes of law related to code enforcement;

(11) professional, supervisory, or management training related to the profession of code enforcement; or

(12) legislative or legal updates related to the profession of code enforcement.

(j) Documentation of continuing education activity shall be maintained by the organization for five years, including:

(1) a roster which shall include the following:

(A) name, address, phone number, registration number, and signature of the registrant; and

(B) number of continuing education hours earned by each individual; and

(2) copies of all program materials sufficient to demonstrate compliance with this section.

(k) At the conclusion of the activity the organization shall distribute to those registered code enforcement officers and code enforcement officers in training who have successfully completed the activity a certificate of completion which shall include the name of the registrant, the name of the organization providing the training, the title of the activity, the date and location of the activity, and the continuing education hours earned. The certificate shall include a breakdown of the hours earned on each topic listed under subsection (i).

(l) Each registered code enforcement officer and code enforcement officer in training shall collect and keep certificates of completion of approved courses. These certificates of completion will be used to document the attendance of a registered code enforcement officer or code enforcement officer in training at approved courses. The department will conduct random audits for compliance with this requirement.

(m) Failure to comply with continuing education requirements may result in suspension of a code enforcement officer or code enforcement officer in training registration until the necessary credits for continuing education are successfully completed.

(n) The department may refuse to accept any or all courses for registration renewal if an organization fails to retain documentation related to the activity as required by this section, or fails to comply with any other requirements that are a basis for approval or that are a part of this chapter.

(o) Initial certification in the twelve months preceding renewal will be accepted as proof of the continuing education required by this section if the certification is listed as follows:

(1) International Code Council (ICC):

(A) residential building inspector;

(B) residential electrical inspector;

(C) residential mechanical inspector;

(D) residential plumbing inspector;

(E) commercial building inspector;

(F) commercial electrical inspector;

(G) commercial mechanical inspector;

(H) commercial plumbing inspector;

(I) fire inspector I;

(J) fire inspector II;

(K) residential combination inspector;

(L) commercial combination inspector;

(M) certified building official;

(N) accessibility inspector;

(O) zoning inspector;

(P) property maintenance and housing inspector; or

(Q) housing code official;

(2) International Association of Plumbing and Mechanical Officials (IAPMO):

(A) voluntary plumbing inspector; or

(B) voluntary mechanical inspector;

(3) National Fire Protection Association (NFPA):

(A) certified fire protection specialist;

(B) fire inspector I;

(C) fire inspector II;

(D) certified building inspector;

(E) certified residential electrical inspector; or

(F) certified master electrical inspector;

(4) International Association of Electrical Inspectors (IAEI):

(A) building 1 and 2 family dwelling;

(B) building general;

(C) electrical 1 and 2 family dwelling;

(D) electrical general;

(E) fire protection general;

(F) fire protection plan review;

(G) mechanical 1 and 2 family dwelling;

(H) mechanical general;

(I) plumbing 1 and 2 family dwelling; or

(J) plumbing general;

(5) National Swimming Pool Foundation (NSPF) certified pool-spa operator; or

(6) American Association of Code Enforcement (AACE):

(A) certified property maintenance and housing inspector;

(B) certified zoning enforcement officer;

(C) certified code enforcement officer; or

(D) code enforcement administrator.

§62.25.Registration Requirements--Renewals.

(a) To renew a registration, an applicant must:

(1) comply with the applicable requirements of this chapter and the Act;

(2) submit a completed application on a department-approved form;

(3) complete the continuing education requirements under §62.24; and

(4) pay the fee required by §62.80.

(b) To renew and maintain continuous registration, the renewal requirements under this section must be completed before the expiration of the registration. A late renewal means the registrant will have a period of non-registration from the expiration date of the expired registration to the issuance date of the renewed registration. During the unregistered period, a person may not claim to be a code enforcement officer or code enforcement officer in training, or use the titles "code enforcement officer" or "code enforcement officer in training."

(c) Failure to receive notification from the department prior to the expiration date of the license will not excuse failure to file for renewal or late renewal.

§62.30.Exemptions.

(a) A person who is licensed or registered under another law of this state and who under the license or registration engages in code enforcement is not required to register with the department.

(b) This state or a political subdivision of this state is not required to employ a person registered under the Act if the state or political subdivision engages in code enforcement. However, if this state or a political subdivision of the state employs a person who uses the title "code enforcement officer," the person must be registered under the Act.

§62.65.Advisory Committee.

(a) The commission shall establish an advisory committee to provide advice and recommendations to the department on technical matters relevant to the administration of this chapter. The name of the advisory committee shall be the Code Enforcement Officers Advisory Committee.

(b) The advisory committee shall consist of nine members appointed by the presiding officer of the commission with the approval of the commission as follows:

(1) five registered code enforcement officers;

(2) one structural engineer or licensed architect;

(3) two consumers, one of which must be a certified building official; and

(4) one person involved in the education and training of code enforcement officers.

(c) Members of the advisory committee shall serve staggered six-year terms so that the terms of three members will expire on February 1 of each odd-numbered year. If a vacancy occurs during a member's term, the presiding officer of the commission, with the approval of the commission, shall appoint a replacement who meets the qualifications for the vacant position to serve for the remainder of the term.

(d) The presiding officer of the commission shall designate one member of the advisory committee to serve as presiding officer of the advisory committee for a term of two years. A member may serve more than one term as presiding officer.

(e) The advisory committee shall meet at the call of the presiding officer of the commission or the executive director of the department.

(f) Meetings shall be announced and conducted under the provisions of the Open Meetings Act, Texas Government Code, Chapter 551.

(g) A quorum of the advisory committee is necessary to conduct official business. A quorum is five members. Advisory committee action shall require a majority vote of those members present and voting.

(h) A member of the advisory committee may be removed from the advisory committee pursuant to Texas Occupations Code §51.209.

§62.70.Standards of Conduct for Engaging in Code Enforcement.

(a) A registrant shall:

(1) be knowledgeable of and adhere to the Act, the rules, applicable codes, and all procedures established by the department for registrants; and

(2) be honest and trustworthy in the performance of all duties and work performed as a registrant, and shall avoid misrepresentation and deceit in any fashion, whether by acts of commission or omission. Acts or practices that constitute threats, coercion, or extortion are prohibited.

(b) A registrant shall not:

(1) participate, whether alone or in concert with others, in any plan, scheme, or arrangement attempting or having as its purpose the evasion of any provision of the Act, the rules, or the standards adopted by the commission;

(2) furnish inaccurate, deceitful, or misleading information to the department;

(3) engage in any activity that constitutes dishonesty, misrepresentation, or fraud while performing as a registrant;

(4) consume alcohol or take a controlled substance not prescribed by a physician, while performing as a registrant;

(5) verbally, physically, or sexually abuse, or attempt to abuse an individual while performing as a registrant;

(6) accept, or offer to accept, any form of compensation for not reporting a hazard as required, or for correcting a hazard which was found while performing as a registrant;

(7) fail to report a crime when the report is required by law;

(8) claim to be a code enforcement officer or code enforcement officer in training, or use the titles "code enforcement officer" or "code enforcement officer in training," while the registrant's registration is expired;

(9) use the registration number or certificate of another person, or allow another person to use his or her registration number or certificate;

(10) alter a registration certificate in a manner that is deceptive or misleading; or

(11) be grossly negligent, incompetent, or engage in misconduct in the practice of code enforcement.

(c) A registrant shall notify consumers of the name, mailing address, internet address, and telephone number of the department for the purpose of directing complaints to the department by providing notification:

(1) on each written contract for services of a registrant;

(2) on a sign prominently displayed in the primary place of business of each registrant; or

(3) in a bill for services provided by a registrant to a third party.

§62.71.Responsibilities of Supervisors.

(a) A supervisor must:

(1) be a registered code enforcement officer;

(2) have adequate training, knowledge, and skill to consult competently concerning any code enforcement services which the supervisee undertakes; and

(3) provide an alternate registered code enforcement officer to provide supervision for the supervisee in circumstances when the supervisor will not be available for more than four consecutive weeks.

(b) A supervisor may not:

(1) supervise more than three supervisees at one time;

(2) accept payment or other consideration from a supervisee in exchange for supervision; or

(3) be employed by the supervisee, lease or rent space from the supervisee, or have any relationship with the supervisee which could impair the supervisor's professional judgment.

(c) A supervisor who has ceased supervision of a supervisee must submit a notification of termination of supervision to the department and the supervisee within 30 days of the date supervision ceases. The notification of termination of supervision must include:

(1) the name and registration number of the supervisor, as well as the name and registration number of the supervisee;

(2) a statement that supervision has terminated;

(3) the reason for termination; and

(4) the date of termination of supervision.

§62.72.Responsibilities of Supervisees.

(a) A code enforcement officer in training must be supervised by a registered code enforcement officer during all times the code enforcement officer in training is engaged in code enforcement. Time shall not be counted toward the experience required for registration as a code enforcement officer unless the code enforcement officer in training had a qualified supervisor.

(b) A supervisee must at all times have a current, accurate verification of supervision form on file with the department. The form must include:

(1) The name of the applicant and each supervisor;

(2) The registration number of each supervisor;

(3) The primary location and address from which code enforcement services will be provided; and

(4) A description of code enforcement duties to be rendered by the supervisee.

(c) The supervisee must file a new verification of supervision form if any details listed in subsection (b) change after submission of the original form.

(d) A supervisee may not pay for supervision.

(e) A supervisee may not employ his or her supervisor, lease or rent space from the supervisor, or have any relationship with the supervisor which could impair the supervisor's professional judgment.

§62.80.Fees.

(a) Fees paid to the department are non-refundable.

(b) Registration fees:

(1) Code enforcement officer, two-year term--$100

(2) Code enforcement officer in training, one-year term--$50

(c) Renewal fees:

(1) Code enforcement officer, two-year renewal--$100

(2) Code enforcement officer in training, one-year renewal--$50

(d) The fee to upgrade a registration from code enforcement officer in training to code enforcement officer is $25.

(e) A duplicate/replacement fee for a registration issued under this chapter is $25.

(f) Late renewal fees for licenses issued under this chapter are provided under §60.83 of this title (relating to late renewal fees).

(g) The dishonored/returned check or payment fee is the fee prescribed under §60.82 of this title (relating to dishonored payment device).

(h) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to criminal history evaluation letters).

§62.90.Administrative Penalties and Sanctions.

If a person or entity violates any provision of Texas Occupations Code, Chapters 51 and 1952, this chapter, or any rule or order of the commission or executive director, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 1952; Texas Occupations Code, Chapter 51; and any associated rules.

§62.91.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapters 51 and 1952 and any associated rules may be used to enforce Texas Occupations Code, Chapters 51 and 1952, and this chapter.

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 April 6, 2017.

TRD-201701454

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


CHAPTER 78. MOLD ASSESSORS AND REMEDIATORS

16 TAC §§78.1, 78.10, 78.20 - 78.22, 78.24, 78.25, 78.30, 78.40, 78.50, 78.52, 78.54, 78.56, 78.58, 78.60, 78.62, 78.64, 78.66, 78.68, 78.70, 78.72, 78.74, 78.80, 78.85, 78.90, 78.92, 78.100, 78.110, 78.120, 78.130, 78.140, 78.150

The Texas Department of Licensing and Regulation (Department) proposes new rules at 16 Texas Administrative Code (TAC), Chapter 78, §§78.1, 78.10, 78.20 - 78.22, 78.24, 78.25, 78.30, 78.40, 78.50, 78.52, 78.54, 78.56, 78.58, 78.60, 78.62, 78.64, 78.66, 78.68, 78.70, 78.72, 78.74, 78.80, 78.85, 78.90, 78.92, 78.100, 78.110, 78.120, 78.130, 78.140 and 78.150, regarding the Mold Assessors and Remediators program.

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the Department of State Health Services (DSHS) to the Texas Commission of Licensing and Regulation (Commission) and the Department. The Commission and Department completed the Phase 1 transition of seven programs on October 3, 2016.

Under Phase 2, the following six programs are being transferred from DSHS to the Commission and the Department: (1) Laser Hair Removal, Texas Health and Safety Code, Chapter 401, §§401.501 - 401.522; (2) Massage Therapy, Texas Occupations Code, Chapter 455; (3) Code Enforcement Officers, Texas Occupations Code, Chapter 1952; (4) Sanitarians, Texas Occupations Code, Chapter 1953; (5) Mold Assessors and Remediators, Texas Occupations Code, Chapter 1958; and (6) Offender Education Programs, Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). The statutory amendments transferring regulation of these six Phase 2 programs from DSHS to the Commission and the Department will take effect on September 1, 2017.

The new rules are proposed to enable the Commission and the Department to regulate the six Phase 2 programs listed above. The proposed new rules provide for the Department to perform the various functions, including licensing, compliance, and enforcement, necessary to regulate these transferred programs. The anticipated effective date of the proposed rules is November 1, 2017. The effective date will coincide with the completion of the transfer of the programs to the Commission and the Department.

The proposed new rules under 16 TAC Chapter 78 are necessary to implement S.B. 202 and to regulate the Mold Assessors and Remediators program under the authority of the Commission and the Department. These proposed new rules are separate from and are not to be confused with the DSHS rules located at 25 TAC Chapter 295, Subchapter J, regarding Texas Mold Assessment and Remediation Rules, which are still in effect.

The Department held public summits on March 6, 2017, in Arlington, Texas; March 8, 2017, in Houston, Texas; and March 10, 2017, in Austin, Texas, to get initial feedback on a draft of the proposed rules prior to publication of the proposed rules in the Texas Register.

The proposed new §78.1 provides the statutory authority for the Commission and the Department to regulate the mold assessors and remediators program.

The proposed new §78.10 creates the definitions to be used in the mold assessors and remediators program.

The proposed new §78.20 explains when credentials are required.

The proposed new §78.21 establishes the basic conditions for all applicants for a credential.

The proposed new §78.22 establishes the renewal requirements.

The proposed new §78.24 provides the qualifications and conditions for taking licensing examinations.

The proposed new §78.25 establishes continuing education requirements and the procedure for verifying compliance with them.

The proposed new §78.30 provides supplemental requirements and clarity regarding the statutory exceptions and exemptions in the mold assessors and remediators program.

The proposed new §78.40 establishes the insurance coverage requirements for licensees.

The proposed new §78.50 details requirements for the mold assessment technician license.

The proposed new §78.52 creates the requirements for the mold assessment consultant license.

The proposed new §78.54 establishes the requirements for a mold assessment company license.

The proposed new §78.56 creates the mold remediation worker registration.

The proposed new §78.58 establishes the requirements for the mold remediation contractor license.

The proposed new §78.60 creates the requirements for a mold remediation company license.

The proposed new §78.62 establishes the requirements for a mold analysis laboratory license.

The proposed new §78.64 details the requirements for a mold training provider accreditation.

The proposed new §78.66 explains the requirements and process for approval of mold training courses and instructors.

The proposed new §78.68 explains the required content of mold training courses.

The proposed new §78.70 establishes responsibilities of all credentialed persons in the mold assessors and remediators program.

The proposed new §78.72 establishes a code of ethics for credentialed persons in the mold assessors and remediators program.

The proposed new §78.74 details recordkeeping and retention requirements.

The proposed new §78.80 establishes all applicable fees in the mold assessors and remediators program.

The proposed new §78.85 provides for and describes the authority of the department to inspect and investigate any person for compliance with the proposed rules.

The proposed new §78.90 provides for administrative penalties and sanctions.

The proposed new §78.92 provides the authority to enforce this chapter and any provision found within.

The proposed new §78.100 explains the minimum required work practices and procedures for mold assessment.

The proposed new §78.110 provides for notifying the department of mold remediation activities.

The proposed new §78.120 explains the minimum required work practices and procedures for mold remediation.

The proposed new §78.130 details mold remediation requirements for heating, ventilation and air conditioning systems.

The proposed new §78.140 establishes the minimum requirements for post-remediation assessment and clearance.

The proposed new §78.150 details requirements for photographs, certificates of mold damage remediation and duties of property owners following mold remediation projects.

Brian E. Francis, Executive Director, has determined that for each year of the first five-year period the proposed new rules are in effect, an increase in cost to the State is expected because the proposed rules require that all applicants and credentialed individuals, except companies, must pass a criminal history background check at the time of application and renewal of the credential. Background checks previously have not been performed for this regulated population. The cost to the Department for each background check is $1 (one dollar) and the fees are remitted to Texas Department of Public Safety. In Fiscal Year 2016, 2,176 initial and renewal applications were received by the mold licensing program at DSHS. The Department, therefore, anticipates an ongoing additional cost to the state of at least $2,176 per fiscal year for each of the first five fiscal years the rule is in effect if the number of credentialed individuals, and the cost of the background check, remain the same.

The Department expects revenue to the state to decrease because the proposed rules do not require the assessment of an examination fee, as did the DSHS rules. The DSHS examination fee was $25 and the examination was administered directly by DSHS. In the future, the examination will be administered by a third-party vendor, in a manner consistent with other Department licensing examinations. The examination fees will be remitted directly to the vendor by the examination candidate. In Fiscal Year 2016 examination fee revenue to the state was $4,675; therefore, the estimated decrease in revenue will be $4,675 per fiscal year for the first five fiscal years the rule is in effect.

However, the proposed rules allow for the Department's standard program fees to include a dishonored payment device fee of $50; a criminal history evaluation letter of $25; and a duplicate credential fee of $25 which is an increase from $20. The Department does not anticipate a significant increase of revenue as a result of these fees because they are discretionary based on the needs and actions of licensees. In addition, there is no estimated loss or increase in revenue to local government as a result of enforcing or administer the rules.

Mr. Francis also has determined that for each year of the first five-year period the proposed new rules are in effect, the public benefit will include that the rules implement the statutory requirements under the authority of the Commission and the Department and provide details that are not found in the enabling acts. The rules also have been formatted and organized to assist the public, the regulated community, and the Department in easily finding specific rules. In addition, the new rules are streamlined so as not to duplicate provisions that are already located in the statutes and rules of the Commission and Department in Texas Occupations Code, Chapter 51 and in 16 TAC Chapter 60, which apply to all programs regulated by the Commission and the Department. In addition, the proposed rules provide for the effective and efficient regulation of mold remediation and assessment activities, which enhances consumer protection and public health, safety, and welfare.

There will be no adverse effect on small or micro-businesses as a result of the proposed new rules. There are no anticipated economic costs to persons who are required to comply with the proposed new rules. The above mentioned standard program fees are discretionary and will not constitute a burden considering a minimal number of licensees might need to pay them based on the needs and actions of the individuals and licensees. In addition, the Department expects the proposed rules to result in cost savings to certain persons required to comply with them. The proposed rules remove some burdens previously applicable to credentialed persons, including the requirement for training providers to issue photo training cards and the removal of the onerous requirement to endorse the required insurance policy with a 10-day notice of cancellation to the Department.

Since the agency has determined that the proposed new rules will have no net adverse economic effect on small or micro-businesses, preparation of a Regulatory Flexibility Analysis as detailed under Texas Government Code §2006.002 is not required.

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032; or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The new rules are proposed under Texas Occupations Code, Chapters 51 and 1958, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 1958. No other statutes, articles, or codes are affected by the proposal.

§78.1.Authority.

This chapter is promulgated under the authority of Texas Occupations Code, Chapters 51 and 1958.

§78.10.Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.

(1) Accredited training program--A training program that has been accredited by the department to provide training for persons seeking licensure or registration under this chapter.

(2) Act--The Texas Occupations Code, Chapter 1958, concerning mold assessment and remediation.

(3) Allied field--Mold assessment, mold remediation, and any field whose principles and practices are applicable to mold assessment or mold remediation, including asbestos abatement, lead abatement, industrial hygiene, building sciences, public health, and environmental remediation.

(4) Assessor--A person who conducts mold assessment as defined in this section and who is licensed under this chapter as a mold assessment technician, mold assessment consultant, or mold assessment company.

(5) Building sciences--The field of study covering the design, construction, management, and performance of building systems, including structures, enclosures, electrical and mechanical systems, environmental systems (such as temperature and moisture control), safety systems (such as fire suppression and alarms), lighting, acoustics, and diagnosis and correction of problems with building systems.

(6) Certificate of Mold Damage Remediation--A certificate adopted by the Texas Department of Insurance, commonly referred to as Certificate of Mold Damage Remediation and Form MDR-1.

(7) Commission--The Texas Commission of Licensing and Regulation.

(8) Consumer Mold Information Sheet--A document prepared and made available by the department that describes the persons who are required to be licensed under this chapter and provides information on mold assessment and mold remediation, including how to contact the department for more information or to file a complaint.

(9) Containment--A component or enclosure designed or intended to control the release of mold or mold-containing dust or materials into surrounding areas in the building. The broad category of containment includes such sub-categories as walk-in containment, surface containment (such as plastic sheeting), and containment devices (such as wall-mounted glove boxes).

(10) Containment area--An area that has been enclosed to control the release of mold or mold-containing dust or materials into surrounding areas.

(11) Contiguous--In close proximity; neighboring.

(12) Contiguous square feet--See "Total surface area of contiguous square feet."

(13) Credential--A license, registration, or accreditation issued under this chapter.

(14) Department--The Texas Department of Licensing and Regulation.

(15) Employee--An individual who is paid a salary, wage, or remuneration by another person or entity for services performed and over whom the person or entity exerts supervision or control as to the place, time, and manner of the individual's work. A contractor or subcontractor who is performing work under a contractual agreement with a person is not an employee of the person unless the agreement specifies otherwise.

(16) Executive director--The executive director of the department.

(17) Facility--Any institutional, commercial, public, governmental, industrial or residential building.

(18) Indoor air--Air within the envelope of a building, including air in spaces normally occupied by persons in the building but excluding air in attics and crawl spaces that are vented to the outside of the building.

(19) Indoor mold--Mold contamination that was not purposely grown or brought into a building and that has the potential to affect the indoor air quality of the building.

(20) License--Any license issued under this chapter. The term "license" does not include a registration, accreditation, or approval issued under this chapter.

(21) Mold--Any living or dead fungi or related products or parts, including spores, hyphae, and mycotoxins.

(22) Managing agent--A company or individual that manages a residential or commercial building for an owner.

(23) Mold analysis--The examination of a sample collected during a mold assessment for the purpose of:

(A) determining the amount or presence of or identifying the genus or species of any living or dead mold or related parts (including spores and hyphae) present in the sample; or

(B) growing or attempting to grow fungi for the purposes of subparagraph (A); or

(C) identifying or determining the amount or presence of any fungal products, including but not limited to mycotoxins and fungal volatile organic compounds, present in the sample.

(24) Mold analysis laboratory--A person, other than an individual, that performs mold or mold-related analysis on a sample collected to determine the presence, identity, or amount of indoor mold in the sample.

(25) Mold assessment--Activity that involves:

(A) an inspection, investigation, or survey of a dwelling or other structure to provide the owner or occupant with information regarding the presence, identification, or evaluation of mold; or

(B) the development of a mold management plan or mold remediation protocol; or

(C) the collection or analysis of a mold sample.

(26) Mold assessment report--A document prepared by a licensed mold assessment consultant or licensed mold assessment technician for a client that describes any observations made, measurements taken, and locations and analytical results of samples taken by an assessment consultant or by an assessment technician during a mold assessment. An assessment report can be either a stand-alone document or a part of a mold management plan or mold remediation protocol prepared by a mold assessment consultant.

(27) Mold management plan--A document prepared by a licensed mold assessment consultant for a client that provides guidance on how to prevent and control indoor mold growth at a location.

(28) Mold-related activities--The performance of mold assessment, mold remediation or any other related activities.

(29) Mold remediation--The removal, cleaning, sanitizing, demolition, or other treatment, including preventive activities, of mold or mold-contaminated matter that was not purposely grown at a location. Preventive activities include those intended to prevent future mold contamination of a remediated area, including applying biocides or anti-microbial compounds.

(30) Mold remediation protocol (mold remediation work analysis)--A document, prepared by a licensed mold assessment consultant for a client, that specifies the estimated quantities and locations of materials to be remediated and the proposed remediation methods and clearance criteria for each type of remediation in each type of area for a mold remediation project.

(31) Mold remediation work plan--A document, prepared by a licensed mold remediation contractor that provides specific instructions and/or standard operating procedures for how a mold remediation project will be performed.

(32) Office--A stationary physical location assigned a street address by the United States Postal Service, where a licensee or an employee of a licensee may be contacted to conduct business related to mold assessment and/or mold remediation.

(33) Person--An individual, corporation, company, contractor, subcontractor, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, governmental entity, or any other association of individuals.

(34) Project--All activities that involve mold-related activities in a building or designated area of a building for which a specific start-date and a specific stop-date is provided that covers the mold remediation.

(35) Remediator--A person who performs mold remediation as defined in this section and who is credentialed under this chapter as a mold remediation worker, mold remediation contractor, or mold remediation company.

(36) Residential dwelling unit--A detached single-family dwelling; an attached single-family dwelling in a building that contains two or more separate single-family dwellings; or a bedroom in group housing. Examples of residential dwelling units include single homes, mobile homes (house trailers), duplexes, apartments, and condominiums. In group housing, such as dormitories, fraternity or sorority houses, and boarding houses, each bedroom is a residential dwelling unit.

(37) Residential property--A property containing one or more residential dwelling units intended to provide living quarters for more than a transitory period, including a residential property that is vacant or under construction. A residential property includes dormitories and employee housing in a non-residential setting (e.g., staff housing at an institutional or commercial facility). Residential properties do not include:

(A) lodgings (such as hotels and motels) that rent units on a transient basis;

(B) institutional facilities that provide care or oversight for residents or inmates (such as hospitals, nursing homes, homes for children with physical or mental disabilities, mental institutions, jails, prisons and detention centers); and

(C) former residential properties that do not currently provide living quarters (such as houses converted into shops or restaurants).

(38) Responsible person--An employee or principal designated by a licensed mold assessment company, mold remediation company, or mold analysis laboratory or by an accredited mold training provider as responsible for its operations and compliance with rules concerning mold-related activities or mold-related training.

(39) Routine cleaning--Cleaning that is done on a regular basis and in a regular course of procedures.

(40) Start-date--The date on which a mold remediation begins. Preparation work is not considered mold remediation.

(41) Stop-date--The date following the day on which final clearance for a mold remediation project is achieved.

(42) Supervise--To direct and exercise control over the activities of a person.

(43) Survey--An activity undertaken in a building to determine the presence, location, or quantity of indoor mold or to determine the underlying condition(s) contributing to indoor mold contamination, whether by visual or physical examination or by collecting samples of potential mold for analysis.

(44) Total surface area of contiguous square feet--The contiguous area of surface material that needs to be cleaned or removed to remediate visible mold contamination.

(45) Training hours--Hours spent in classroom instruction, hands-on activities, and field trips, including time used for course tests and brief breaks but not including scheduled lunch periods.

(46) Visible--Exposed to view; capable of being seen.

(47) Work analysis--A mold remediation protocol.

(48) Work plan--A mold remediation work plan.

(49) Working days--Monday through Friday, including holidays that fall on those days.

§78.20.Credential Required.

(a) Licensing or registration requirement. A person must be licensed or registered in compliance with this chapter to engage in mold assessment or mold remediation unless specifically exempted under the Act or §78.30.

(b) Accreditation requirement. A person must be accredited as a mold training provider in compliance with this chapter to offer mold training for fulfillment of training requirements for licensing under this chapter.

§78.21.Applications.

(a) Unless otherwise indicated, an applicant must submit the following:

(1) a completed application on a department-approved form;

(2) the fee required under §78.80; and

(3) proof that the applicant meets all requirements for obtaining the credential being sought.

(b) Materials submitted in the application process become the property of the department and are not returnable.

(c) Except as provided by §78.56(c), all credentials are valid for two years and expire on the second anniversary of the effective date.

§78.22.Renewals.

(a) A person seeking to renew a license, registration, or accreditation shall submit a renewal application before the credential expires.

(b) Each person is responsible for renewing the credential before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification of expiration from the department before the expiration date of the credential shall not excuse failure to apply for renewal or late renewal.

(c) An applicant for renewal of a mold assessment technician, mold assessment consultant, or mold remediation contractor license or for renewal of a mold remediation worker registration must successfully complete a required continuing education course as specified in §78.25 before applying for renewal. The applicant must complete the continuing education course within the two-year term of the credential preceding the expiration date of the credential.

(d) To renew a credential, a person must:

(1) submit a complete renewal application on a department-approved form or in a manner specified by the department;

(2) if renewing an individual license or registration:

(A) successfully pass a criminal history background check;

(B) complete continuing education training as specified in §78.25; and

(C) comply with the continuing education audit process described under §78.25 as applicable;

(3) demonstrate compliance with the requirement for insurance coverage under §78.40;

(4) demonstrate compliance with all other applicable requirements under this chapter for the credential being renewed; and

(5) pay the renewal fee required under §78.80.

(e) Credentials must be renewed every two years.

(f) A temporary mold remediation worker registration issued under §78.56(c) may not be renewed.

(g) A person shall not perform any mold-related activity with an expired credential.

§78.24.Licensing Examination.

(a) An applicant for a mold assessment technician, mold assessment consultant, or mold remediation contractor license must pass the state licensing examination before the license will be issued.

(b) To qualify to take the examination, the individual applicant must submit a completed license application for review and determination of licensing examination eligibility.

(c) The department or the department's designee will notify the applicant who meets all applicable requirements for the license sought and who qualifies to take the examination.

(d) Annually, the department or its designee shall publish a schedule of examination dates and locations.

(e) The department or its designee shall administer or arrange for the administration of the examination.

(f) The department or its designee will notify the applicant in writing regarding the applicant's examination scores or results.

§78.25.Continuing Education.

(a) This section applies to licensed mold assessment technicians, licensed mold assessment consultants, licensed mold remediation contractors, and registered mold remediation workers.

(b) An applicant for renewal of a license listed under subsection (a) must successfully complete a continuing education course provided by an accredited mold training provider in the subject area for which the renewal is sought.

(c) An applicant for renewal of a registration listed under subsection (a) must successfully complete a mold remediation worker continuing education course provided by an accredited mold training provider or by a licensed mold remediation contractor or licensed mold remediation company.

(d) All applicants must complete the required continuing education course during the immediately preceding two-year term of the license or registration before renewal.

(e) Attendance and completion of continuing education courses of at least the following number of hours are required during each renewal period:

(1) mold assessment technician license--8.

(2) mold assessment consultant license--8.

(3) mold remediation contractor license--8.

(4) mold remediation worker registration--4.

(f) An applicant for renewal of a mold assessment technician license may fulfill the continuing education training requirement by successfully completing an approved mold assessment technician or mold assessment consultant continuing education course provided by an accredited mold training provider.

(g) Reporting of continuing education credit. The department shall employ an audit system for continuing education reporting.

(1) The licensee or registrant shall maintain a record of continuing education credits earned and proof of completion of the continuing education credits.

(2) The certificates or other documentation are not to be forwarded to the department at the time of renewal unless the person has been selected for audit.

(h) Audits. The audit process shall be as follows:

(1) The department shall select for audit a random sample of licensees and registrants for each renewal month. Each person selected will be notified of the continuing education audit when they receive their renewal documentation.

(2) If selected for an audit, the person shall submit copies of certificates or other documentation satisfactory to the department, verifying the person's attendance, participation and completion of the continuing education. All documentation must be provided at the time of renewal.

(3) Failure to timely furnish this information or providing false information during the audit process or the renewal process are grounds for disciplinary action against the person.

(4) A person who is selected for continuing education audit may renew through the online renewal process. However, the license or registration will not be considered renewed until required continuing education documents are received, accepted and approved by the department.

(i) Licenses and registrations will not be renewed until continuing education requirements have been met.

§78.30.Exceptions and Exemptions.

(a) For purposes of Texas Occupations Code §1958.002(b)(1)(D), regarding the excepted emergency containment of mold contamination, an emergency exists if a delay in mold remediation services in response to a water damage occurrence would increase mold contamination.

(b) For purposes of Texas Occupations Code §1958.102(d) and (e), regarding certain residential property, the exemptions apply regardless of the total surface area within the subject property that is affected by mold growth. The following terms used in Texas Occupations Code §1958.102(d) shall have the meaning given:

(1) "improve" means to build, construct, or erect a new building or structure or a new portion of a building or structure that is attached to an existing building or structure; and

(2) "improvement" means a building or structure, or a portion of a building or structure, that was built, constructed, or erected as an attachment to an existing building or structure after the construction or erection of the existing building or structure.

(c) Licensees performing mold remediation in an area in which the mold contamination for the project affects a total surface area of less than 25 contiguous square feet must do so in accordance with the Act and this chapter unless otherwise indicated.

(d) A person who is performing mold remediation under the licensing exemptions of §1958.102(a) or (c) of the Act, in which the mold contamination affects a total surface area of less than 25 contiguous square feet, and who identifies additional mold such that the total mold contamination affects a total surface area of 25 contiguous square feet or more shall:

(1) immediately cease all remediation work and implement emergency containment if necessary; and

(2) advise the person requesting the remediation that the exemption under §1958.102(a) or (c) of the Act has been lost, and that any additional mold remediation and post-remediation assessment in the area must be performed by a person licensed or registered under this chapter.

(e) Employees of a licensee performing mold remediation under the supervision of a licensee must be registered as provided under §78.56.

(f) Professional exemptions.

(1) All persons engaged in mold-related activities must be licensed or registered under this chapter, except that those professionals currently licensed by the state in another field (including, but not limited to, medicine, architecture, or engineering) who provide to a licensed or registered person only consultation related to that other field, are not required to be separately licensed under this chapter. In such a case, the responsibility for the project or activity remains with the person licensed or registered under this chapter.

(2) A person is not required to be licensed or registered under this chapter if engaging only in the performance of regulated activities of a licensed insurance adjuster pursuant to Chapter 4101 of the Texas Insurance Code or in the performance of regulated activities of a licensed public insurance adjuster pursuant to Chapter 4102 of the Texas Insurance Code, including the investigation and review of losses to insured property, assignment of coverage, and estimation of the usual and customary expenses due under the applicable insurance policy, including expenses for reasonable and customary mold assessment and remediation.

(g) The review of mold remediation bids or proposals and making recommendations thereto is not mold assessment or mold remediation.

(h) The code of ethics, conflict of interest, and disclosure requirements in the Act and these rules apply to credentialed persons engaging in the activities described in this section.

§78.40.Insurance Requirements.

(a) Unless otherwise indicated, persons licensed under this chapter are required to obtain commercial general liability insurance in the amount of not less than $1 million per occurrence and to maintain the coverage for the term of the license.

(1) Governmental entities that are self-insured are not required to purchase insurance under this chapter.

(2) A non-governmental entity (business entity or individual) may be self-insured if it submits to the department for approval an affidavit signed by an authorized official of the entity or by the individual stating that it has a net worth of at least $1 million. A current financial statement indicating a net worth of at least $1 million must accompany the affidavit. A new affidavit and current financial statement must be submitted with each renewal application.

(3) An individual required to have insurance must obtain individual coverage unless covered under the policy of the individual's employer or employed by a governmental entity or a person approved by the department to be self-insured.

(b) Insurance policies required under this section must be currently in force and must be written by:

(1) an insurance company authorized to do business in Texas; or

(2) an eligible Texas surplus lines insurer as defined in the Texas Insurance Code, Chapter 981 (relating to Surplus Lines Insurance); or

(3) a Texas registered risk retention group; or

(4) a Texas registered purchasing group.

(c) The certificate of insurance must be complete, including all applicable coverages and endorsements, and must name the Texas Department of Licensing and Regulation as a certificate holder.

(d) An applicant for a license or license renewal must provide proof of insurance in one of the following forms:

(1) a copy of the required current certificate of insurance; or

(2) if claiming to be self-insured, a statement that it is a governmental entity, or, if a non-governmental entity, the affidavit and current financial statement described under subsection (a); or

(3) proof that the licensee by whom the applicant is employed has the required insurance.

(e) The commission or the executive director may impose an administrative penalty or take other disciplinary action against any person who fails to have the current insurance required under this section.

(1) If a policy is canceled or materially changed, the licensee shall notify the department in writing not later than 30 calendar days before the change or cancellation effective date. A licensed company may file a single notification for the company and its licensed employees.

(2) If a policy expires or is canceled or materially changed, the licensee shall cease engaging in mold-related activities. Before resuming such activities, the licensee must either:

(A) provide to the department a certificate of the renewal or replacement policy; or

(B) submit to the department the affidavit and current financial statement described under subsection (a) and receive departmental approval to be self-insured.

(3) If an individual licensee ceases to be covered under an employer's insurance, the individual must obtain replacement coverage either individually or through a new employer. The individual must submit the documentation required under subsection (d) to the department before engaging in mold-related activities.

(f) Applicants for a registration or renewal of a registration issued under this chapter shall comply with subsection (d)(3), if applicable.

§78.50.Mold Assessment Technician License.

(a) Licensing requirement. An individual must be licensed as a mold assessment technician to perform activities listed under subsection (b), except that an individual licensed under §78.52 is not required to be separately licensed under this section.

(b) Scope. An individual licensed under this section is authorized to determine the location and extent of mold or suspected mold present in a facility. A mold assessment technician is licensed to:

(1) record visual observations and take on-site measurements, including temperature, humidity, and moisture levels, during an initial or post-remediation mold assessment;

(2) collect samples for mold analysis during an initial mold assessment;

(3) prepare a mold assessment report; and

(4) as directed by an on-site assessment consultant, collect samples during a post-remediation mold assessment.

(c) Qualifications. An applicant for a mold assessment technician license must be a high school graduate or have obtained a General Educational Development (GED) certificate.

(d) Eligibility for licensing. To obtain a mold assessment technician license, a person must:

(1) be at least 18 years old at the time of application;

(2) successfully pass a criminal history background check;

(3) comply with subsection (c);

(4) comply with the requirement for insurance coverage under §78.40;

(5) successfully complete a mold training course as described in §78.68(b) or (c);

(6) pass the required licensing examination prescribed under §78.24; and

(7) pay the fee required under §78.80.

(e) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) proof of compliance with the insurance requirement for licensees specified in §78.40;

(2) a copy of the applicant's high school diploma or GED certificate; and

(3) a copy of a course completion certificate for the applicable training course offered by a department-accredited training provider, as described in §78.68(b) or (c). An applicant for a mold assessment technician license may fulfill the training requirement for the license by successfully completing an approved mold assessment technician or mold assessment consultant training course offered by an accredited mold training provider.

(f) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, a licensed mold assessment technician shall:

(1) perform only activities allowed under subsection(b);

(2) comply with mold sampling protocols accepted as industry standards, as presented in training course materials or as required by his/her employer;

(3) utilize the services of a laboratory that is licensed by the department to provide analysis of mold samples; and

(4) provide to the client a mold assessment report following an initial (pre-remediation) mold assessment, if the technician is not acting as an employee of a licensed mold assessment consultant or company.

§78.52.Mold Assessment Consultant License.

(a) Licensing requirements. An individual must be licensed as a mold assessment consultant to perform activities listed under subsection (b). A licensed mold assessment consultant who employs more than one individual required to be licensed under this section or under §78.50, must be separately licensed as a mold assessment company under §78.54.

(b) Scope. An individual licensed under this section is also licensed to perform all activities of a mold assessment technician listed in §78.50(b). In addition, a licensed mold assessment consultant is licensed to provide mold assessment services including:

(1) plan surveys to identify conditions favorable for indoor mold growth or to determine the presence, extent, amount, or identity of mold or suspected mold in a building;

(2) conduct activities recommended in a plan developed under paragraph (1) and describe and interpret the results of those activities;

(3) determine locations at which a licensed mold assessment technician will record observations, take measurements, or collect samples;

(4) prepare a mold assessment report, including the observations made, measurements taken, locations of samples collected, analysis results, and analysis and interpretation of results of samples taken by the consultant or by a licensed mold assessment technician during the mold assessment;

(5) develop a mold management plan for a building, including recommendations for periodic surveillance, response actions, and prevention and control of mold growth;

(6) prepare a mold remediation protocol, including the evaluation and selection of appropriate methods, personal protective equipment (PPE), engineering controls, project layout, post-remediation clearance evaluation methods and criteria, and preparation of plans and specifications;

(7) evaluate a mold remediation project to certify that mold contamination identified for the remediation project has been remediated as outlined in a mold remediation protocol;

(8) evaluate a mold remediation project to certify that the underlying cause of the mold has been remediated so that it is reasonably certain that the mold will not return from that remediated cause; and

(9) complete appropriate sections of a Certificate of Mold Damage Remediation as specified under §78.150(b).

(c) Qualifications. An applicant for a mold assessment consultant license must meet at least one of the following education and/or experience requirements:

(1) a bachelor's or graduate degree from an accredited college or university with a major in a natural or physical science, engineering, architecture, building construction, or building sciences, and at least one year of experience in an allied field; or

(2) at least 60 college credit hours with a grade of C or better in the natural sciences, physical sciences, environmental sciences, building sciences, or a field related to any of those sciences, and at least three years of experience in an allied field; or

(3) a high school diploma or a GED certificate and at least five years of experience in an allied field; or

(4) certification as an industrial hygienist, a professional engineer, a professional registered sanitarian, a certified safety professional, or a registered architect, with at least one year of experience in an allied field.

(d) Eligibility for licensing. To obtain a mold assessment consultant license, a person must:

(1) be at least 18 years old at the time of application;

(2) successfully pass a criminal history background check;

(3) comply with subsection (c);

(4) comply with the requirement for insurance coverage under §78.40;

(5) successfully complete a mold training course as described in §78.68(c);

(6) pass the required licensing examination prescribed under §78.24; and

(7) pay the fee required under §78.80.

(e) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) proof of compliance with the insurance requirement for licensees specified in §78.40;

(2) verifiable evidence that the applicant meets the requirement in subsection (c); and

(3) a copy of a course completion certificate for the applicable training course offered by a department-accredited training provider, as described in §78.68(c).

(f) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, a licensed mold assessment consultant shall:

(1) provide adequate consultation to the client to diminish or eliminate hazards or potential hazards to occupants caused by the presence of mold growth;

(2) provide, in accordance with a client's instructions, professional services concerning surveys, building conditions that have or might have contributed to mold growth, proper building operations and maintenance to prevent mold growth, and compliance with work practices and standards;

(3) comply with mold sampling protocols as presented in training course materials or as required by his/her employer;

(4) inquire of the client whether any hazardous materials, including lead-based paint and asbestos, are present in the project area;

(5) utilize the services of a laboratory that is licensed by the department to provide analysis of mold samples;

(6) sign and date each mold assessment report and each mold management plan that the mold assessment consultant prepares and include that consultant's license number and expiration date on each report and each plan;

(7) sign and date each mold remediation protocol on the cover page, including the mold assessment consultant's license number and expiration date. The consultant must also initial the protocol on every page that addresses the scope of work and on all drawings related to the remediation work;

(8) review and approve changes to any protocol by signing or initialing according to paragraph (7);

(9) provide to the client a mold assessment report following an initial (pre-remediation) mold assessment. If the consultant includes the results of the initial assessment in a mold remediation protocol or a mold management plan, a separate assessment report is not required;

(10) provide to the client a mold remediation protocol at least one calendar day before a mold remediation project begins;

(11) ensure that all employees who will perform mold assessment activities are provided with, fit tested for, and trained in the correct use of personal protective equipment appropriate for the activities to be performed;

(12) ensure that each person performing mold assessment activities is licensed in accordance with this chapter, as applicable;

(13) ensure that the training and license of each employee that is required to be licensed under this chapter are current;

(14) if the mold assessment consultant performs post-remediation assessment on a project and ceases to be involved with the project before it achieves clearance, provide a final status report to the client and to the mold remediation contractor or company performing mold remediation work for the client as specified under §78.140(e); and

(15) provide a passed clearance report to the client as specified under §78.140(d) and complete applicable sections of a Certificate of Mold Damage Remediation as specified under §78.150(b).

§78.54.Mold Assessment Company License.

(a) Licensing requirements. A person performing mold assessment activities must be licensed as a mold assessment company if the person employs more than one individual required to be licensed under §78.50 or §78.52.

(b) Authorization and conditions. A licensed mold assessment company shall:

(1) designate one or more individuals licensed as mold assessment consultants as its responsible person(s);

(2) notify the department in writing of any changes in individual licensed mold assessment consultants as responsible persons within 30 calendar days following the change of the responsible person;

(3) perform mold assessment activity only during periods with the active employment of at least one individual licensed mold assessment consultant designated as the responsible person for the company;

(4) not transfer the license to any other person, including to any company that has bought the licensed entity;

(5) apply for a name change on the license within 30 calendar days after a change in name only; and

(6) obtain a new license before performing any mold-related activities when the transfer of a licensed person occurs.

(c) Eligibility for licensing. To be eligible for licensing, a person must employ at least one licensed mold assessment consultant. To obtain a mold assessment company license, a person must:

(1) comply with the requirement for insurance coverage under §78.40; and

(2) pay the fee required under §78.80.

(d) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) proof of compliance with the insurance requirement for licensees specified in §78.40;

(2) the name, address, and occupation of each person that has an ownership interest of 10% or more in the applicant; and

(3) the name and license number of each licensed mold assessment consultant designated by the applicant as a responsible person.

(e) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, a licensed mold assessment company shall:

(1) provide each client with a mold assessment report following an initial (pre-remediation) mold assessment. If the company includes the results of the initial assessment in a mold remediation protocol or a mold management plan, a separate assessment report is not required;

(2) provide each client a mold remediation protocol at least one calendar day before a mold remediation project begins;

(3) utilize the services of a laboratory that is licensed by the department to provide analysis of mold samples;

(4) ensure that all employees who will perform mold assessment activities are provided with, fit tested for, and trained in the correct use of personal protective equipment appropriate for the activities to be performed;

(5) ensure that each person performing mold assessment activities is licensed in accordance with this chapter, as applicable;

(6) ensure that the training and license of each employee who is required to be licensed under this chapter are current;

(7) if the company performs post-remediation assessment on a project and ceases to be involved with the project before it achieves clearance, provide a final status report to the client and to the mold remediation contractor or company performing mold remediation work for the client as specified under §78.140(e); and

(8) provide a passed clearance report to the client as specified under §78.140(d) and provide a Certificate of Mold Damage Remediation, with applicable sections completed by a mold assessment consultant, to a mold remediation company or contractor, as specified under §78.150(b).

§78.56.Mold Remediation Worker Registration.

(a) Registration requirement. An individual must be registered as a mold remediation worker to perform mold remediation, except that an individual licensed under §78.58 is not required to be separately registered under this section.

(b) Eligibility for registration. To obtain a mold remediation worker registration, a person must:

(1) successfully pass a criminal history background check;

(2) be at least 18 years old at the time of application;

(3) demonstrate that the person's employer, if any, is in compliance with the requirement for insurance coverage under §78.40;

(4) complete a mold training course as described in §78.68(d); and

(5) pay the fee required under §78.80.

(c) Temporary registration. The department may issue a temporary registration to an applicant for a mold remediation worker registration if the person:

(1) has not been convicted of a criminal offense; and

(2) meets the requirements of subsection (b)(2)-(5).

(3) A temporary registration is valid for 21 days and may not be renewed.

(d) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) a copy of a course completion certificate for the applicable training course as described in §78.68(d); and

(2) proof that the applicant's employer, if any, is in compliance with the insurance requirement for licensees specified in §78.40.

(e) Responsibilities. In addition to all applicable responsibilities in this chapter, a registered mold remediation worker shall use remediation techniques specified in the project mold remediation work plan.

(f) Prohibitions. Registered mold remediation workers are prohibited from:

(1) performing mold remediation except under the supervision of a licensed remediation contractor; and

(2) engaging in any mold-related activity requiring licensing as a remediation contractor under this chapter.

§78.58.Mold Remediation Contractor License.

(a) Licensing requirements. An individual must be licensed as a mold remediation contractor to perform activities listed under subsection (b). A licensed mold remediation contractor who employs more than one individual required to be licensed under this section or required to be registered under §78.56 must be separately licensed as a mold remediation company under §78.60.

(b) Scope. An individual licensed under this section may perform mold remediation and supervise registered mold remediation workers performing mold remediation. In addition, a licensed mold remediation contractor is licensed to provide mold remediation services including:

(1) preparing a mold remediation work plan providing instructions for the remediation activities to be performed for a mold remediation project; and

(2) conducting and interpreting the results of activities recommended in a work plan developed under paragraph (1), including any of the activities of a registered mold remediation worker under §78.56.

(c) Qualifications. An applicant for a mold remediation contractor license must meet at least one of the following education and/or experience requirements:

(1) a bachelor's or graduate degree from an accredited college or university with a major in a natural or physical science, engineering, architecture, building construction, or building sciences and at least one year of experience either in an allied field or as a general contractor in building construction;

(2) at least 60 college credit hours with a grade of C or better in the natural sciences, physical sciences, environmental sciences, building sciences, or a field related to any of those sciences, and at least three years of experience in an allied field or as a general contractor in building construction;

(3) a high school diploma or GED certificate, plus at least five years of experience in an allied field or as a general contractor in building construction; or

(4) certification as an industrial hygienist, a professional engineer, a professional registered sanitarian, a certified safety professional, or a registered architect, with at least one year of experience either in an allied field or as a general contractor in building construction.

(d) Eligibility for licensing. To obtain a mold remediation contractor license, a person must:

(1) be at least 18 years old at the time of application;

(2) successfully pass a criminal history background check;

(3) comply with subsection (c);

(4) comply with the requirement for insurance coverage under §78.40;

(5) successfully complete a mold training course as described in §78.68(e);

(6) pass the required licensing examination prescribed under §78.24; and

(7) pay the fee required under §78.80.

(e) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) proof of compliance with the insurance requirement for licensees specified in §78.40;

(2) verifiable evidence that the applicant meets the requirement in subsection (c); and

(3) a copy of a course completion certificate for the applicable training course offered by a department-accredited training provider, as described in §78.68(e).

(f) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, a licensed mold remediation contractor shall:

(1) supervise mold remediation workers as defined in §78.10(42). When supervising mold remediation workers, the licensee must:

(A) be physically present at the mold remediation project; or

(B) be accessible by telephone within ten minutes and able to be at the project within one hour of being contacted;

(2) ensure that all employees who will perform mold remediation activities are provided with, fit tested for, and trained in the correct use of personal protective equipment appropriate for the activities to be performed;

(3) ensure that all supervised persons performing mold remediation activities are licensed or registered under this chapter;

(4) ensure that the training and license or registration of each individual who is required to be licensed or registered to perform mold remediation activities under this chapter is current;

(5) comply with the requirements under §78.64(f)(2)-(3), (5)-(9), and (11) if the licensee provides mold remediation worker training as authorized in §78.68(d);

(6) maintain copies of the required training documents in accordance with 78.74(e), if providing mold remediation worker training as authorized in §78.68(d);

(7) accurately interpret field notes, drawings, and reports relating to mold assessments;

(8) inquire of the client whether any known or suspected hazardous materials, including lead-based paint and asbestos, are present in the project area;

(9) advise clients about options for mold remediation;

(10) comply with standards for preparing mold remediation work plans, as presented in training course materials or as required by the mold remediation company by whom the contractor is employed;

(11) properly prepare each mold remediation work plan that the mold remediation contractor prepared by:

(A) signing and dating the cover page;

(B) including the license number and license expiration date on the cover page; and

(C) initialing the work plan on every page that addresses the scope of work and on all drawings related to the remediation work;

(12) provide to each client a mold remediation work plan for the project at least one calendar day before the mold remediation preparation work begins;

(13) submit the required notification to the department as described in §78.110, unless employed by a licensed mold remediation company; and

(14) provide to the property owner a completed Certificate of Mold Damage Remediation as specified under §78.150.

§78.60.Mold Remediation Company License.

(a) Licensing requirements. A person performing mold remediation activities must be licensed as a mold remediation company if the person employs more than one individual required to be registered under §78.56 or licensed under §78.58. A licensed mold remediation company is specifically authorized to employ mold remediation contractors and mold remediation workers who are currently licensed or registered under this chapter to assist in the company's mold remediation activity.

(b) Authorization and conditions. A licensed mold remediation company shall:

(1) designate one or more individuals licensed as mold remediation contractors as its responsible person(s);

(2) notify the department in writing of any changes in individual licensed mold remediation contractors as responsible persons within 30 calendar days following the change of the responsible person; and

(3) perform mold remediation activity only during periods with the active employment of at least one individual licensed mold remediation contractor designated as the responsible person for the company;

(4) not transfer the license to any other person, including to any company that has bought the licensed entity;

(5) apply for a name change on the license within 30 calendar days after a change in name only; and

(6) obtain a new license before performing any mold-related activities when the transfer of a licensed person occurs.

(c) Eligibility for licensing. To be eligible for licensing, a person must employ at least one licensed mold remediation contractor. To obtain a mold remediation company license, a person must:

(1) comply with the requirement for insurance coverage under §78.40; and

(2) pay the fee required under §78.80.

(d) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) proof of compliance with the insurance requirement for licensees specified in §78.40;

(2) the name, address, and occupation of each person that has an ownership interest of 10% or more in the applicant; and

(3) the name and license number of each licensed mold remediation contractor designated by the applicant as a responsible person.

(e) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, a licensed mold remediation company shall:

(1) ensure that all employees who will perform mold remediation activities are provided with, fit tested for, and trained in the correct use of personal protective equipment appropriate for the activities to be performed;

(2) ensure that each person performing mold remediation activities is licensed or registered in accordance with this chapter, as applicable;

(3) ensure that the training and license or registration of each individual who is required to be licensed or registered to perform mold remediation activities under this chapter are current;

(4) comply with the requirements under §78.64(f)(2)-(3), (5)-(9), and (11) if the licensee provides mold remediation worker training as authorized in §78.68(d);

(5) maintain copies of the required training documents at a central location at its Texas office in accordance with 78.74(e) if providing mold remediation worker training as authorized in §78.68(d);

(6) provide to each client a mold remediation work plan for the project at least one calendar day before the mold remediation preparation work begins;

(7) submit the required notification to the department as described in §78.110; and

(8) provide to the property owner a completed Certificate of Mold Damage Remediation as specified under §78.150.

§78.62.Mold Analysis Laboratory License.

(a) Licensing requirement. A person must be licensed in compliance with the provisions of this section to engage in activities listed under subsection (b). A person licensed under this section is not required to be separately licensed under §78.54.

(1) Branch offices that perform mold analysis must fulfill the same equipment and operational standards as the main office that has been licensed and must be accredited in accordance with subsection (c), for the types of analysis they will be performing.

(2) A licensed mold analysis laboratory shall:

(A) designate one or more individuals as responsible persons;

(B) not transfer the license to any other person, including to any company that has bought the licensed entity;

(C) apply for a name change on the license within 30 calendar days after a change in name only; and

(D) obtain a new license before performing any mold-related activities when the transfer of a licensed person occurs.

(b) Scope. A person licensed under this section is authorized to analyze samples collected during mold-related activities to:

(1) determine the presence, identity, or amount of mold present;

(2) provide any other information regarding the sample that the submitter requests; and

(3) obtain any other information that the laboratory deems useful.

(c) Qualifications. A person must submit documentation showing that:

(1) the laboratory is accredited by the American Industrial Hygiene Association under the Environmental Microbiology Laboratory Accreditation Program (EMLAP); or

(2) the laboratory is accredited or certified by a program deemed equivalent by the department for the preparation and analysis of mold; or

(3) all individuals who will analyze mold samples are accredited by the Pan-American Aerobiology Certification Board or a program deemed equivalent by the department, if the laboratory will analyze only non-culturable samples; or

(4) the laboratory meets the following requirements:

(A) all individuals who will analyze mold samples:

(i) have at least a bachelor's degree in microbiology or biology;

(ii) have successfully completed training in mold analysis offered by the McCrone Research Institute or by a program deemed equivalent by the department, including receiving a training certificate; and

(iii) have a least three years of experience as a mold microscopist; and

(B) mold analysis activity at the laboratory is overseen by a full-time mycologist or microbiologist with:

(i) an advanced academic degree; or

(ii) at least two years of experience in mold analysis.

(d) Eligibility for licensing. To obtain a mold analysis laboratory license, a person must:

(1) comply with subsection (c);

(2) comply with the requirement for insurance coverage under §78.40; and

(3) pay the fee required under §78.80.

(e) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) proof of compliance with the insurance requirement for licensees specified in §78.40;

(2) evidence acceptable to the department that the laboratory meets one of the qualification requirements under subsection (c);

(3) the name, address, and occupation of each person that has an ownership interest of 10% or more in the laboratory; and

(4) the name of each individual designated by the applicant as a responsible person.

(f) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, the mold analysis laboratory shall:

(1) provide to a client, as applicable, details of analysis methods used, amounts (percentages) analyzed, raw counts for each genus of mold that is identified, magnification used for counting and identifying mold, and culture media and conditions used;

(2) provide the department-issued license number of the laboratory on its analysis reports;

(3) ensure that all individuals who will conduct mold analysis are properly trained in analysis techniques; and

(4) maintain accreditation required under subsection (c). A licensed mold assessment laboratory that loses the required accreditation must:

(A) provide to the department written notification of a change in accreditation status within 30 calendar days after the change; and

(B) cease providing services until the accreditation is reinstated.

§78.64.Mold Training Provider Accreditation.

(a) Accreditation requirement. A person must be accredited as a mold training provider to offer mold training courses that are prerequisites for licensing.

(b) Authorizations and Conditions. The following shall apply to issuance of accreditations under this section.

(1) Accredited training providers:

(A) may not transfer the accreditation to any other person, including to any company that has bought the accredited entity; and

(B) must apply for a name change within 30 calendar days after a change in the name of the accredited entity only.

(2) A person must obtain accreditation before providing training when the transfer of an accredited person occurs.

(3) A person shall not advertise, offer, or provide a training course for fulfillment of requirements for a license or renewal of a license under this chapter unless the department or the department's designee has approved the course under §78.66.

(A) Accredited training providers may offer, without department approval, mold remediation worker training courses and other courses relevant to mold-related activities, including, but not limited to, courses on respirator training and compliance.

(B) Accredited training providers shall use only approved instructors for mold remediation worker training courses.

(4) Accredited training providers must offer approved courses as described below.

(A) Each training course shall address only one license type and shall not be combined with other areas of licensure. Initial training courses shall not be combined with continuing education courses. This prohibition against combined training applies to hands-on training sessions as well as other aspects of the course.

(B) Training providers shall conduct each course in one language throughout and a course shall not be combined with the same course taught in another language. A training provider may offer a course in a language other than English if all instructors and guest speakers are fluent in that language and all books, training materials, and course tests are in that language.

(C) Accredited mold training providers are authorized to offer:

(i) a mold assessment technician or mold assessment consultant training course to persons applying for a mold assessment technician license; and

(ii) a mold assessment technician or mold assessment consultant continuing education training course to persons renewing a mold assessment technician license.

(5) Training providers shall not conduct any approved course for more than eight training hours (including hands-on portions) in a calendar day.

(6) A training provider must require instructors and guest speakers to present in person during at least 50% of the classroom instruction and all of the hands-on instruction. The training provider may allow an instructor or guest speaker to use training films and videotapes, but audiovisual materials shall not be used as substitutes for the required in-person presentations or the hands-on instruction.

(7) Courses requiring hands-on practical training must be presented in an environment that permits each student to have actual experience performing tasks associated with the mold-related activity.

(8) The maximum number of students in a lecture session shall be 40. Hands-on training sessions shall maintain a student-to-instructor ratio of not more than 15 to one and must be conducted so that the instructor is able to assist and evaluate each student individually. Field trips shall maintain a student-to-instructor ratio of not more than 40 to one.

(9) Accredited training providers shall conduct approved training courses in facilities acceptable as classrooms and conducive to learning. The facilities must have restrooms available for the students.

(10) Course instructors shall maintain an attendance record for each course and take attendance at the beginning of each four-hour instruction segment. A student who is absent from more than 10% of the course instruction, including hands-on sessions and field trips, is ineligible to complete the course.

(11) An accredited training provider shall verify and keep a written record of the student scores on each course test.

(A) The training provider shall have a written policy concerning the administration of tests, including allowing only one re-test per student for each course.

(B) The use of the same questions for both the original and re-test is prohibited.

(C) Oral course tests are not allowed; however, a training provider may read the written test questions and possible answers to a student who must then mark his or her answer on an answer sheet.

(D) If a student fails the re-test, the student must repeat the course and pass a new test.

(12) An individual instructor shall not train himself/herself to qualify for a license or a registration.

(c) Qualifications. To qualify for an accreditation, a training provider must:

(1) have a written policy concerning refunds and cancellations including cancellation procedures in all languages in which training is offered;

(2) provide the refund and cancellation policy to students before payment of fees;

(3) employ a mold training manager who meets at least one of the following requirements in (A), (B), or (C):

(A) at least two years of experience, education, or training in teaching adults;

(B) a bachelor's or graduate degree in building construction technology, engineering, industrial hygiene, safety, public health, education, or business administration or program management;

(C) at least two years of experience in managing an occupational health and safety training program specializing in environmental hazards; and

(D) has demonstrated experience, education, or training in mold assessment or remediation, lead or asbestos abatement, occupational safety and health, or industrial hygiene;

(4) provide for each course a qualified principal instructor who is:

(A) approved by the training provider; and

(B) meets the requirements under §78.66; and

(5) develop and implement a plan to maintain and improve the quality of the training program. This plan shall contain at least the following elements:

(A) procedures for periodic revision of training materials and the course test to reflect innovations in the field; and

(B) procedures for the training manager's annual review of instructor competency.

(d) Eligibility for accreditation. To obtain a mold training provider accreditation, a person must:

(1) comply with subsection (c); and

(2) pay the fee required under §78.80.

(e) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) the name, address, and occupation of each person that has an ownership interest of 10% or more in the applicant;

(2) a complete application for approval of at least one training course; and

(3) a description of the training provider's organization, including:

(A) the address of its central office;

(B) the names and business addresses of its principals;

(C) a statement of any affiliation with other mold-related companies doing business in Texas;

(D) a listing of the courses to be offered; and

(E) the identity of the qualified staff member designated as the mold training manager.

(f) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, an accredited mold training provider shall:

(1) present to students all course information and material approved by the department;

(2) furnish appropriate equipment in good working order and in sufficient quantities for each training session in which equipment is required;

(3) maintain the hands-on skills assessment to ensure that it accurately evaluates student performance of the work practices and procedures associated with the course topics contained in §78.68;

(4) maintain the validity and integrity of each course test to ensure that it accurately evaluates the student's knowledge and retention of the course topics;

(5) at the conclusion of each training course, provide to each student who successfully completes the course and passes the required course test, if applicable:

(A) a course completion certificate as described in §78.66(c); and

(B) information regarding the state application and examination process, as applicable;

(6) submit to the department within seven calendar days after the completion date of each course the names and number identifiers of each student who attended the course, on a department-approved form or in a manner specified by the department;

(7) make all records required under this section available for inspection by the department or the department's designee immediately upon conclusion of a course and the course test;

(8) document that each person who receives a certificate has successfully completed a training course in accordance with §78.68 and has achieved a passing score on the written test, if applicable;

(9) for each mold training course for a license or registration, maintain a file that includes:

(A) the training course name;

(B) the date the course was provided;

(C) the subject area of the course taught;

(D) the names of all instructors and guest speakers who taught the course;

(E) a roster of all students in the course;

(F) the names of students receiving certificates;

(G) the certificate numbers; and

(H) the expiration date of the training, if applicable; and

(10) for each training course for a mold license, maintaining in the file:

(A) a copy of the course test;

(B) each student's identified, graded answer sheet;

(C) the date and location where the test was administered; and

(D) the name of the test proctor; and

(11) ensure that all information from the training course and course test, if applicable, corresponds to the information on each person's course completion certificate.

(g) Inspections and audits. The department or its designee may audit any training course. Training providers shall permit department representatives to attend, evaluate, and monitor any training course, without charge or advance notice, to ensure compliance with this chapter.

§78.66.Training: Approval of Mold Training Courses and Instructors.

(a) General provisions. Mold training providers must obtain approval of training courses and provide the names of approved instructors to the department in advance of the courses being offered except as provided under §78.64(b)(3)(A). Each application for course approval must be made on a separate application form.

(b) Application for course approval. An application must be submitted on a department-approved form or in a manner specified by the department. A complete application for training course approval shall include:

(1) the training program provider's name, business address and telephone number;

(2) the area of licensure and type of course (initial or continuing education) for which approval is being sought, including the course length in training hours;

(3) a detailed outline of each course curriculum including the specific topics taught, the amount of time allotted to each topic, and the amount and type of hands-on training for each topic;

(4) a description of the facilities and equipment available for lecture and hands-on training;

(5) a copy of the course test blueprint (written documentation of the proportion of test questions devoted to each major topic in the course);

(6) a copy of all course materials including student manuals, instructor notebooks, handouts, and other course-related materials in all languages taught;

(7) the names of all course instructors; and

(8) a description and example of the course completion certificates to be issued to students.

(c) Course completion certificates must have a unique certificate number and must include:

(1) the training facility's name, address, and telephone number;

(2) the printed name and signature of the course instructor;

(3) the license number of the person who provided the training, if applicable;

(4) the student's name;

(5) a statement that the student successfully completed the course and the name and dates of the training course completed; and

(6) the signature of the course director or the principal officer, owner, or chief executive officer of the training provider.

(d) Changes to training courses and certificates. An accredited training provider must receive department approval for changes to approved training courses, course completion certificates, or to any of the items listed in subsection (b). Accredited training providers must submit requests in writing and shall not offer training courses incorporating any changes until the department or the department's designee has granted approval.

(e) Instructor approval. Only qualified instructors who are approved by the training provider may provide instruction in courses required under this chapter, except that guest speakers are permitted to provide limited instruction as provided under subsection (f).

(1) An accredited training provider shall:

(A) fully document instructor qualifications;

(B) approve and use for instruction of mold training courses only instructors who meet the qualifications in this subsection;

(C) notify the department or the department's designee of its roster of approved instructors on a department-approved form or in a manner specified by the department before providing training courses;

(D) notify the department or its designee of additions and deletions to its instructor roster in a manner specified by the department within 15 calendar days after the change of instructors;

(E) ensure that instructors and guest speakers meet all qualifications for each area of licensure for which they are approved to provide instruction; and

(F) provide documentation of instructor qualifications upon request by the department or its designee.

(2) Instructor qualifications. An accredited mold training provider shall ensure that instructors are qualified in at least one of the following categories:

(A) at least two years of actual hands-on experience in mold-related activities for the subject that the instructor will teach, and a high school diploma and completion of at least one teacher education course in vocational or industrial teaching; or

(B) graduation from an accredited college or university with a bachelor's degree or advanced degree in natural or physical sciences or a related field, with one year of hands-on experience in mold-related activities; or

(C) at least three years teaching experience and completion of one or more teacher education courses in vocational or industrial teaching from an accredited two or four-year college, with one year of hands-on experience in mold-related activities; or

(D) a vocational teacher with certification from the Texas Education Agency with one year of hands-on experience in mold-related activities.

(3) Instructor training. Each instructor shall meet the training course requirements under §78.68 as appropriate for each area of licensure for which the instructor is approved to teach. Instructors are not required to be separately licensed or registered.

(f) Guest speakers. Training providers may utilize guest speakers to present training who have documentable and verifiable professional expertise on the subject about which they are speaking. Training providers are not required to obtain department approval for guest speakers but must maintain proof of each guest speaker's qualifications in accordance with this section and §78.74.

§78.68.Training: Mold Training Courses.

(a) General provisions. Individual applicants for licensing or renewal must submit evidence acceptable to the department of fulfillment of specific training requirements.

(b) Assessment technician training. The assessment technician training course shall consist of at least 24 training hours that includes lectures, demonstrations, audio-visuals and hands-on training, course review, and a written test of 50 multiple-choice questions. The course requirements in paragraphs (3), (5) - (8), and (10), require hands-on training as an integral part of the course. The assessment technician course shall include:

(1) sources of, conditions necessary for, and prevention of indoor mold growth;

(2) potential health effects, in accordance with a training protocol developed in consultation with state professional associations, including at least one representing physicians;

(3) workplace hazards and safety, including personal protective equipment, and respirators;

(4) technical and legal considerations for mold assessment, including applicable regulatory requirements, the role of the mold assessment technician, and the roles of other professionals (including an assessment consultant);

(5) performance of visual inspections where mold might be present and determining sources of moisture problems, including exterior spaces (including crawlspaces and attics), interior components (including windows, plumbing, walls, and ceilings) and heating, ventilation, and air-conditioning (HVAC) systems (including return air and supply ducts);

(6) utilization of physical measurement equipment and tools, including moisture meters, humidity meters, particle counters, data-logging equipment, and visual and robotic inspection equipment;

(7) biological sampling strategies and methodologies, including sampling locations and techniques, and minimizing cross-contamination;

(8) sampling methodologies, including bulk, surface (including tape, swab, and vacuum sampling), and air sampling (including the differences between culturable and particulate sampling, sampling times, calibrating pumps, selecting media for culturable samples, and sampling for fungal volatile organic compounds);

(9) state-of-the-art work practices and new technologies;

(10) proper documentation for reports, including field notes, measurement data, photographs, structural diagrams, and chain-of-custody forms;

(11) an overview of mold remediation projects and requirements, including containment and air filtration; and

(12) clearance testing and procedures, including review of mold remediation protocols, work plans, visual inspections, and sampling strategies.

(c) Assessment consultant training. The assessment consultant training course shall consist of at least 40 training hours that includes lectures, demonstrations, audio-visuals and hands-on training, course review, and a written test of 100 multiple-choice questions. The assessment consultant training course shall include:

(1) all topics listed under subsection (b), including appropriate hands-on activities;

(2) requirements concerning workplace safety, including components of and development of respiratory protection plans and programs, workplace safety plans, and medical surveillance programs;

(3) technical and legal considerations for mold assessment, including applicable regulatory requirements, the role of the assessment consultant, the roles of other professionals, recordkeeping and notification requirements, insurance, and legal liabilities;

(4) an overview of building construction, building sciences, moisture control, and water intrusion events;

(5) prevention of indoor air quality problems, including avoiding design and construction defects and improving maintenance and housekeeping;

(6) basics of HVAC systems and their relationship to indoor air quality (including pyschrometrics, filtration, ventilation and humidity control), HVAC inspection and assessment, and remediation of HVAC systems;

(7) survey protocols for effective assessment, covering the areas described under subsection (b)(5) - (8);

(8) interpretation of data and sampling results;

(9) interviewing building occupants, minimum requirements for questionnaires, and interpreting results;

(10) writing mold management plans and mold remediation protocols, including format and contents (including structural components, HVAC systems, and building contents), defining affected areas (including floor plans), identifying and repairing moisture sources and their causes, developing a scope of work analysis, specifying containment and air filtration strategies, determining post-remediation assessment criteria, and clearance criteria;

(11) post-remediation clearance testing and procedures, including review of mold remediation plans, visual inspections, sampling strategies, and quality assurance; and

(12) case studies.

(d) Remediation worker training. Remediation worker training shall consist of at least four training hours that includes lectures, demonstrations, audio-visuals, and hands-on training. The training shall include all course information and material required under this subsection. An individual must successfully complete worker training and become registered as a mold remediation worker before performing mold remediation activities.

(1) The training must be provided by either:

(A) a licensed mold remediation contractor or licensed mold remediation company; or

(B) a mold training provider accredited by the department.

(2) The principal instructor for the training must be:

(A) a licensed mold remediation contractor; or

(B) an individual who is approved under §78.66 to teach mold-related courses.

(3) The training shall adequately address the following areas and shall include hands-on training in the areas described in subparagraphs (C) and (E) - (F):

(A) sources of indoor mold and conditions necessary for indoor mold growth;

(B) potential health effects and symptoms from mold exposure, in accordance with a training protocol developed in consultation with state professional associations, including at least one representing physicians;

(C) workplace hazards and safety, personal protective equipment including respirators, personal hygiene, personal decontamination, confined spaces, and water, structural, and electrical hazards;

(D) technical and legal considerations for mold remediation, including applicable regulatory requirements, the role of the worker, and the roles of other professionals;

(E) an overview of how mold remediation projects are conducted, including containment and air filtration; and

(F) work practices for removing, cleaning, and treating mold.

(e) Remediation contractor training. The remediation contractor training course shall consist of at least 40 training hours that includes lectures, demonstrations, audio-visuals and hands-on training, course review, and a written test of 100 multiple-choice questions. The course requirements in paragraphs (3) and (7) - (8), require hands-on training as an integral part of the training. The course shall adequately address:

(1) sources of indoor mold and conditions necessary for indoor mold growth;

(2) potential health effects, in accordance with a training protocol developed in consultation with state professional associations, including at least one representing physicians;

(3) requirements concerning workplace hazards and safety, personal protective equipment including respirators, personal hygiene, personal decontamination, confined spaces, and water, structural, and electrical hazards;

(4) requirements concerning worker protection, including components of and development of respiratory protection plans and programs, workplace safety plans, and medical surveillance programs;

(5) technical and legal considerations for mold remediation, including applicable regulatory requirements, the role of the mold remediation contractor, the role of the mold remediation worker, the roles of other professionals, insurance, legal liabilities, and recordkeeping and notification requirements;

(6) building sciences, moisture control, and water intrusion events;

(7) an overview of how mold remediation projects are conducted and requirements thereof, including containment, and air filtration;

(8) work practices for removing, cleaning, and treating mold, including state-of-the-art work practices and new technologies;

(9) development of a mold remediation work plan from a protocol, including writing the work plan, detailing remediation techniques for the building structure, HVAC system, and contents, delineating affected areas from floor plans, developing appropriate containment designs, determining HEPA air filtration requirements, and determining dehumidification requirements;

(10) clearance testing and procedures, including a review of typical clearance criteria, visual inspection of the work area before clearance, and achieving clearance;

(11) contract specifications, including estimating job costs from a protocol and determining insurance and liability issues; and

(12) protecting the public and building occupants from mold exposures.

(f) Continuing education training courses.

(1) The continuing education courses for mold assessment technicians, mold assessment consultants, and mold remediation contractors shall be at least eight training hours in length.

(2) Continuing education training for mold remediation workers shall be at least four training hours in length and shall be provided by a person specified under subsection (d)(1).

(3) Continuing education training shall include a review of state regulations, state-of-the-art developments, and key aspects of the initial training course.

(g) Course tests.

(1) Each training provider shall administer a closed-book written test to students who have completed any training course required under this chapter, except that no examination is required of students in remediation worker training.

(2) The test for the initial training course for assessment technician shall consist of 50 multiple-choice questions.

(3) The test for the initial training course for assessment consultant and remediation contractor shall consist of 100 multiple-choice questions.

(4) Training providers may include demonstration testing as part of the test for the initial training course.

(5) The continuing education tests shall consist of at least ten questions.

(6) Students passing the test shall receive a course completion certificate.

(7) Training providers shall use course tests provided or approved by the department or the department's designee.

§78.70.Responsibilities of Credentialed Persons.

(a) Persons who are licensed, registered, or accredited under this chapter shall, as applicable:

(1) adhere to the code of ethics prescribed by §78.72;

(2) comply with work practices and procedures of this chapter;

(3) present to the department or the department's representative any department-issued identification card, credential, or certificate upon request;

(4) comply with the requirements of §1958.155 of the Act (relating to Conflict of Interest; Disclosure Required);

(5) maintain insurance coverage required under §78.40 while engaging in mold-related activities regulated under this chapter;

(6) comply with the recordkeeping responsibilities under §78.74 at both the Texas office and work site locations as applicable;

(7) cooperate with department personnel and representatives of the department in the discharge of their official duties, as described in §78.85; and

(8) notify the department of the following changes no later than the indicated time period after such changes occur, on a department-approved form in a manner specified by the department:

(A) withdrawal of licensed mold remediation contractor or licensed mold remediation company from association with a mold remediation project - five calendar days.

(B) addition of licensed mold remediation company to association with a mold remediation project - one calendar day.

(C) change in mailing address or telephone number - 30 calendar days.

(D) change of persons who have an ownership interest of 10% or more in a person licensed or accredited under this chapter, including additions to or deletions from any list of such persons previously supplied to the department and any changes in the names, addresses, or occupations of any persons on such a list - 30 calendar days.

(E) addition or deletion of a responsible person - 30 calendar days.

(b) All individuals who are required to be licensed or registered under this chapter must have a valid department-issued identification card, credential, or certificate, as applicable, present at the worksite when engaged in mold-related activities.

(c) The licensee overseeing mold-related activities, with the exception of activities performed by a mold analysis laboratory, must ensure that a client and the property owner (or the property owner's designee), if not the same, are provided a copy of the department Consumer Mold Information Sheet (CMIS).

(1) The licensee shall provide the CMIS on the earlier of:

(A) the first contact with the client, potential client, or property owner or designee of the property owner, or

(B) at least one calendar day before the initiation of any mold-related activity.

(2) In an emergency as described in §78.110(e), the licensee shall ensure that the Consumer Mold Information Sheet is provided to the client and the property owner (or the property owner's designee), if not the same, as soon as practicable but not later than the following calendar day after the licensee identifies the emergency.

(d) Credentialed persons are responsible for determining whether the mold-related activities in which they will engage require additional credentials beyond those required under this chapter.

(e) No person shall sell, assign, or transfer a credential, identification card, certificate, or approval issued under this chapter. A person shall obtain a new credential or approval after the transfer of a person that is not an individual before activities requiring a credential or approval under this chapter may be conducted.

(f) The individual that is designated by a licensed mold assessment company or mold remediation company as its responsible person shall not be the responsible person for another licensee with the same category of license.

(g) Consumer complaint information.

(1) A licensed or accredited person shall notify each client of the department's name, web address, mailing address, and telephone number for the purpose of directing complaints to the department.

(2) The information shall be displayed on written documents provided by the credentialed person to a client, property owner, or third party, including mold assessment reports and protocols, mold remediation work plans, bids, estimates, contracts, bills for service, and information brochures.

(h) Office requirement. A person licensed under this chapter must maintain an office in Texas. An individual employed by a person licensed under this chapter is considered to maintain an office in Texas through that employer.

§78.72.Code of Ethics.

(a) The purpose of this section is to establish the standards of professional and ethical conduct required of all persons holding credentials issued under this chapter.

(b) All credentialed persons shall, as applicable to their area of credentialing:

(1) undertake to perform only services for which they are qualified by credential, education, training or experience in the specific technical fields involved;

(2) meet or exceed the minimum standards for mold assessment and remediation in this chapter;

(3) not participate in activities where a conflict of interest might arise, pursuant to §1958.155 of the Act (relating to Conflict of Interest; Disclosure Required) and disclose any known or potential conflicts of interest to any party affected or potentially affected by such conflicts;

(4) provide only necessary and desired services to a client and not sell unnecessary or unwanted products or services;

(5) to the extent required by law, keep confidential any personal information regarding a client, including medical conditions, obtained during the course of a mold-related activity;

(6) not misrepresent any professional qualifications or credentials;

(7) not provide to the department any information that is false, deceptive, or misleading;

(8) cooperate with the department or the department's representative or designee by promptly furnishing required documents or information and by promptly responding to requests for information;

(9) not work if impaired as a result of drugs, alcohol, sleep deprivation or other conditions and not allow those under their supervision to work if known to be impaired;

(10) maintain knowledge and skills for continuing professional competence and participate in continuing education programs and activities;

(11) not make any false, misleading, or deceptive claims, or claims that are not readily subject to verification, in documents or statements including any advertising, announcement, presentation, competitive bidding, mold assessment report, mold analysis, mold remediation protocol, or mold remediation work plan; and

(12) not make a representation that is designed to take advantage of the fears or emotions of the public or a customer.

(c) Duty to report ethical violations. All credentialed persons:

(1) have the responsibility of promptly reporting alleged misrepresentations or violations of the Act or this chapter to the department;

(2) are responsible for competent and efficient performance of their duties and shall report to the department incompetent, illegal, or unethical conduct of any practitioner of mold assessment or remediation; and

(3) shall not retaliate against any person who reported in good faith to the department alleged incompetent, illegal or unethical conduct.

§78.74.Records.

(a) Record retention. Records and documents required by this section shall be retained for the time specified in subsection (b)(2) for mold remediation companies and contractors, subsection (c)(2) for mold assessment companies and consultants, subsection (d) for mold analysis laboratories, and subsection (e)(1) for training providers.

(1) Records and documents shall be made available for inspection by the department or the department's representative or any law enforcement agency immediately upon request.

(2) Licensees and accredited training providers who cease to do business shall notify the department in a manner specified by the department at least 30 calendar days before such event to advise how they will maintain all records during the minimum three- or five-year retention period. The department, upon receipt of such notification and at its option, may provide instructions for how the records shall be maintained during the required retention period. A licensee or accredited person shall notify the department that it has complied with the department's instructions within 30 calendar days after their receipt or make other arrangements approved by the department. Failure to comply may result in disciplinary action.

(b) Mold remediation companies and contractors. A licensed mold remediation company shall maintain the records listed in paragraphs (1) and (2) for each mold remediation project performed by the company and the records listed in paragraph (4) for each remediation worker training session provided by the company. A licensed mold remediation contractor not employed by a company shall personally maintain the records listed in paragraphs (1) and (2) for each mold remediation project performed by the contractor and the records listed in paragraph (4) for each remediation worker training session provided by the mold remediation contractor.

(1) A licensed mold remediation contractor shall maintain the following records and documents on-site at the location of the mold-related activities at a project for its duration:

(A) a current copy of the mold remediation work plan and all mold remediation protocols used in the preparation of the work plan; and

(B) a listing of the names and license or registration numbers of all individuals working on the remediation project.

(2) A licensed mold remediation company shall maintain the following records and documents at a central location at its Texas office for three years following the stop date of each project that the company performs. A licensed mold remediation contractor not employed by a company shall maintain the following records and documents at a central location at his or her Texas office for three years following the stop date of each project that the contractor performs:

(A) a copy of the mold remediation work plan specified under paragraph (1)(A);

(B) photographs of the scene of the mold remediation taken before and after the remediation;

(C) the written contract between the mold remediation company or remediation contractor and the client, and any written contracts related to the mold remediation project between the company or contractor and any other party;

(D) all invoices issued regarding the mold remediation; and

(E) copies of all certificates of mold remediation issued by the company or contractor.

(3) A remediation contractor or company may maintain the records required under paragraphs (1) and (2) in an electronic format. A remediation contractor or company who maintains the required records in an electronic format must provide paper copies of records to a department inspector during an inspection if requested to do so by the inspector.

(4) A licensed mold remediation contractor or licensed mold remediation company that provides mold remediation worker training to meet the requirements under §78.68(d) shall maintain copies of the required training documents at a central location at its Texas office.

(c) Mold assessment companies and consultants.

(1) A licensed mold assessment company shall maintain the following records and documents at a central location at its Texas office for the time period required under paragraph (2) for each project that the company performs. A licensed mold assessment consultant not employed by a company shall maintain the following records and documents at a central location at his or her Texas office for the time period required under paragraph (2) for each project that the contractor performs:

(A) the name and mold credential number of each of its employees who worked on the project and a description of each employee's involvement with the project;

(B) the written contract between the mold assessment company or consultant and the client;

(C) all invoices issued regarding the mold assessment;

(D) copies of all laboratory reports and sample analyses;

(E) copies of all photographs required under §78.140;

(F) copies of all mold remediation protocols and changes prepared as a result of mold assessment activities; and

(G) copies of all passed clearance reports issued by the company or consultant.

(2) For each project, a licensed mold assessment company or consultant shall maintain all the records listed in paragraph (1) until:

(A) the company or consultant issues a mold assessment report, management plan, or remediation protocol to a client, if the company or consultant performs only the initial assessment for the project; or

(B) the company or consultant issues the final status report to the client, if a final status report is issued; or

(C) the company or consultant provides the signed Certificate of Mold Damage Remediation to a mold remediation contractor or company, if a Certificate of Mold Damage Remediation is provided.

(d) Mold analysis laboratories. A licensed mold analysis laboratory shall maintain copies of the results, including the sample identification number, of all analyses performed as part of a mold assessment or mold remediation for three years from the date of the sample analysis.

(e) Training providers. Accredited training providers shall comply with the following record-keeping requirements. The training provider shall maintain the records in a manner that allows verification of the required information by the department or the department's designee.

(1) The training provider shall maintain records for at least five years from the date of each training course.

(2) A training provider may maintain the records required under paragraph (1) in an electronic format. A training provider who maintains the required records in an electronic format must provide paper copies of records to a department inspector during an inspection if requested to do so by the inspector.

§78.80.Fees.

(a) Unless otherwise specified, the fees established in this section must be paid to the department before a license, registration, or accreditation will be issued or renewed.

(b) Schedule of Fees.

(1) Fees for Notifications:

(A) Notification of mold remediation, initial: owner-occupied residential dwelling unit--$25

(B) Notification of mold remediation, initial: other than owner-occupied residential dwelling unit--$100

(2) Fees for Credentials:

(A) Mold assessment technician license or renewal--$200

(B) Mold assessment consultant license or renewal--$600

(C) Mold assessment company license or renewal--$1,000

(D) Mold remediation worker registration or renewal--$60

(E) Mold remediation contractor license or renewal--$500

(F) Mold remediation company license or renewal--$1,000

(G) Mold analysis laboratory license or renewal--$1,000

(H) Mold training provider accreditation or renewal--$1,000

(3) Fees for Approval of Training Courses:

(A) Application for approval of initial mold training course--$100

(B) Application for approval of initial mold training course when submitted concurrent with application for mold training provider initial accreditation--$0

(C) Application for approval of continuing education mold training course--$100

(D) Application for approval of continuing education mold training course when submitted concurrent with application for mold training provider initial accreditation--$0

(4) Fee for a replacement or duplicate credential, certificate, or identification card--$25

(c) Late renewal fees for licenses, registrations, and accreditations issued under this chapter are prescribed under §60.83 of this title (relating to Late Renewal Fees).

(d) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

(e) The fee for a dishonored/returned check or payment is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

(f) All fees paid to the department are nonrefundable.

§78.85.Inspections and Investigations.

(a) The department or the department's representative or designee may inspect or investigate the business practices of any persons involved with mold-related activity for compliance with this chapter.

(b) A department representative, upon presenting a department identification card, shall have the right to enter any area or environment, including but not limited to any containment area, building, construction site, storage or office area, or vehicle to review records, to question any person, or to locate, identify, or assess areas of mold growth for the purpose of inspection and investigation for compliance with this chapter.

(c) A department representative conducting official duties is not required to notify in advance or seek permission to conduct inspections or investigations.

(1) It is a violation for any person to interfere with, deny, or delay an inspection or investigation conducted by a department representative.

(2) A department representative shall not be impeded or refused entry in the course of official duties by reason of any regulatory or contractual specification.

§78.90.Administrative Penalties and Sanctions.

Violations of the Texas Occupations Code, Chapters 51 or 1958, this chapter, or a rule or order of the executive director or commission may result in proceedings to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of the Texas Occupations Code and the associated rules.

§78.92.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapters 51 and 1958, and the associated rules may be used to enforce Texas Occupations Code, Chapter 1958 and this chapter.

§78.100.Minimum Work Practices and Procedures for Mold Assessment.

(a) Scope. These general work practices are minimum requirements and do not constitute complete or sufficient specifications for mold assessment. More detailed requirements developed by an assessment consultant for a mold assessment or for a particular mold remediation project shall take precedence over the provisions of this section.

(b) Purpose. The purpose of a mold assessment is to determine the source(s), location(s), and extent of mold growth in a building, to determine the condition(s) that caused the mold growth, and to enable the assessment consultant to prepare a mold remediation protocol.

(c) Personal protective equipment for assessors. If an assessment consultant or company determines that personal protective equipment (PPE) should be used during a mold assessment project, the assessment consultant or company shall ensure that all individuals who engage in assessment activities and who will be, or are anticipated to be, exposed to mold are provided with, fit tested for, and trained on the appropriate use and care of the specified PPE. The assessment consultant or company must document successful completion of the training before the individuals perform regulated activities.

(d) Sampling and data collection. If samples for laboratory analysis are collected during the assessment:

(1) sampling must be performed according to nationally accepted methods;

(2) preservation methods shall be implemented for all samples where necessary;

(3) proper sample documentation, including the sampling method, the sample identification code, each location and material sampled, the date collected, the name of the person who collected the samples, and the project name or number must be recorded for each sample;

(4) proper chain of custody procedures must be used; and

(5) samples must be analyzed by a laboratory licensed under §78.62.

(e) Mold remediation protocol. An assessment consultant shall prepare a mold remediation protocol that is specific to each remediation project and provide the protocol to the client at least one calendar day before remediation activities begin. The mold remediation protocol must specify:

(1) the rooms or areas where the work will be performed;

(2) the estimated quantities of materials to be cleaned or removed;

(3) the methods to be used for each type of remediation in each type of area;

(4) the PPE to be used by remediators. A minimum of an N-95 respirator is recommended during mold-related activities when mold growth could or would be disturbed. Using professional judgment, a consultant may specify additional or more protective PPE if he or she determines that it is warranted;

(5) the proposed types of containment, as that term is defined in §78.10(9) and as described in subsection (g), to be used during the project in each type of area; and

(6) the proposed clearance procedures and criteria, as described in subsection (i), for each type of remediation in each type of area.

(f) Building occupants. A mold assessment consultant shall consider whether to recommend to a client that, before remediation begins, the client should inform building occupants of mold-related activities that will disturb or will have the potential to disturb areas of mold contamination.

(g) Containment requirements. Containment must be specified in a mold remediation protocol when the mold contamination affects a total surface area of 25 contiguous square feet or more for the project.

(1) Containment is not required if only persons who are licensed or registered under this chapter occupy the building in which the remediation takes place at any time between the start-date and stop-date for the project as specified on the notification required under §78.110.

(2) The containment specified in the remediation protocol must prevent the spread of mold to areas of the building outside the containment under normal conditions of use.

(3) If walk-in containment is used, supply and return air vents must be blocked, and air pressure within the walk-in containment must be lower than the pressure in building areas adjacent to the containment.

(A) Operation of equipment to recirculate air inside of containment without maintaining negative air pressure may be conducted when the specific conditions, phases, and time periods during which it may or must occur are specified in the mold remediation protocol before commencing this use of equipment.

(B) Operation of equipment to recirculate air inside of containment without maintaining negative air pressure is prohibited during periods of active mold remediation activity.

(h) Disinfectants, biocides and antimicrobial coatings. An assessment consultant who indicates in a remediation protocol that a disinfectant, biocide, or antimicrobial coating will be used on a mold remediation project shall indicate a specific product or brand only if it is registered by the United States Environmental Protection Agency (EPA) for the intended use and if the use is consistent with the manufacturer's labeling instructions. A decision by an assessment consultant to use such products must take into account the potential for occupant sensitivities and possible adverse reactions to chemicals that have the potential to be off-gassed from surfaces coated with such products.

(i) Clearance procedures and criteria. In the remediation protocol for the project, the assessment consultant shall specify:

(1) at least one nationally recognized analytical method for use within each remediated area in order to determine whether the mold contamination identified for the project has been remediated as outlined in the remediation protocol;

(2) the criteria to be used for evaluating analytical results to determine whether the remediation project passes clearance;

(3) that post-remediation assessment shall be conducted while walk-in containment is in place, if walk-in containment is specified for the project; and

(4) the procedures to be used in determining whether the underlying cause of the mold identified for the project has been remediated so that it is reasonably certain that the mold will not return from that same cause.

§78.110.Notification of Mold Remediation Activities.

(a) General provision. A mold remediation contractor or company shall notify the department or the department's designee of a mold remediation, as defined in §78.10(29), when mold contamination affects a total surface area of 25 contiguous square feet or more. The notification shall be:

(1) received by the department or its designee no less than five calendar days before the anticipated start date of the mold remediation. The mold remediation contractor or company shall retain a confirmation that the department received the notification;

(2) submitted on a department-approved form in a manner specified by the department. The form must be filled out completely and properly. Blanks that do not apply shall be marked "N/A." The "N/A" designation will not be accepted for identification of the work site, building description, building owner, individuals required to be identified on the notification form, start- and stop-dates, or scheduled hours of mold remediation; and

(3) completed to identify the responsible person.

(b) Start-date change to later date. When mold remediation activity is rescheduled to start later than the date or hours contained in the most recent notice, the mold remediation contractor or company shall notify the department in the manner specified by the department as soon as possible but before the start-date on the most recent notice. A written amended notification is required immediately following a telephone notification and shall be submitted in the manner specified by the department.

(c) Start-date change to earlier date. When mold remediation activities begin on a date earlier than the date contained in the notice, the mold remediation contractor or company shall notify the department of the new start-date in writing or in the manner specified by the department at least five calendar days before the start-date unless the provisions of subsection (e) apply. The contractor or company shall confirm with the department by telephone or in a manner specified by the department that the notice is received at least five calendar days before the start-date.

(d) Start-date/stop-date requirement.

(1) In no event shall mold remediation begin or be completed on a date other than the date contained in the written notice except for operations covered under subsection (e).

(2) Amendments to start-date changes must be submitted as required in subsections (b) and (c).

(3) The mold remediation contractor or company shall provide schedule changes including work-hour changes to the department no less than one calendar day before the most recent stop-date or the new stop-date, whichever comes first. Changes less than five calendar days in advance shall be confirmed with the department and followed up in writing or in a manner specified by the department.

(4) An amendment is required for any stop-dates that change by more than one workday.

(e) Provision for emergency. An emergency exists if a delay in mold remediation services in response to a water damage occurrence would increase mold contamination.

(1) In an emergency, the mold remediation contractor or company shall notify the department as soon as practicable but not later than the following working day after the licensee identifies the emergency.

(2) Initial notification may be made to the department by telephone followed by written notification in the manner specified by the department. The contractor or company shall retain a confirmation that the notification was received by the department.

§78.120.Minimum Work Practices and Procedures for Mold Remediation.

(a) Scope. These general work practices are minimum requirements and do not constitute complete or sufficient specifications for a mold remediation project. More detailed requirements developed by an assessment consultant for a particular project shall take precedence over the provisions of this section.

(b) Remediation work plan. A remediation contractor shall prepare a mold remediation work plan that is specific to each project, fulfills all the requirements of the mold remediation protocol, and provides specific instructions and/or standard operating procedures for how a mold remediation project will be performed.

(1) The remediation contractor shall provide the mold remediation work plan to the client at least one calendar day before the mold remediation preparation work begins.

(2) The remediation contractor shall conduct the mold remediation in accordance with the work plan.

(c) Personal protective equipment (PPE) requirements. If an assessment consultant specifies in the mold remediation protocol that PPE is required for the project, the remediation contractor or company shall provide the specified PPE to all individuals who engage in remediation activities and who will, or are anticipated to, disturb or remove mold contamination, when the mold affects a total surface area for the project of 25 contiguous feet or more. The recommended minimum PPE is an N-95 respirator.

(1) Each individual who is provided PPE must receive training on the appropriate use and care of the provided PPE.

(2) The remediation contractor or company must document successful completion of the training before the individual performs regulated activities.

(d) Containment requirements. The containment specified in the remediation protocol must be used on a mold remediation project when the mold affects a total surface area of 25 contiguous square feet or more for the project.

(1) Containment is not required if only persons who are licensed or registered under this chapter occupy the building in which the remediation takes place at any time between the start-date and stop-date for the project as specified on the notification required under §78.110.

(2) The containment, when constructed as described in the remediation work plan and under normal conditions of use, must prevent the spread of mold to areas outside the containment.

(3) If walk-in containment is used, supply and return air vents must be blocked and air pressure within the walk-in containment must be lower than the pressure in building areas adjacent to the containment.

(A) Operation of equipment to recirculate air inside of containment without maintaining negative air pressure may be conducted when the specific conditions, phases, and time periods during which it may or must occur are specified in the mold remediation protocol before commencing this use of equipment.

(B) Operation of equipment to recirculate air inside of containment without maintaining negative air pressure is prohibited during periods of active mold remediation activity.

(4) The mold remediation contractor shall ensure that the containment is maintained in accordance with the work plan and the requirements of this chapter until the containment is removed.

(e) Notice signs. Signs advising that a mold remediation project is in progress shall be displayed at all accessible entrances to remediation areas.

(1) Notice signs shall be at least eight (8) inches by ten (10) inches in size and shall bear the words "NOTICE: Mold remediation project in progress" in black on a yellow background. The text of the signs must be legible from a distance of ten (10) feet.

(2) Notice signs must be displayed continuously during the period in which active mold remediation is ongoing.

(f) Removal of containment. No person shall remove or dismantle any walk-in containment structures or materials from a project site before receipt by the licensed mold remediation contractor or remediation company overseeing the project of a written notice from a licensed mold assessment consultant that the project has achieved clearance as described under §78.140.

(g) Disinfectants, biocides, and antimicrobial coatings.

(1) A disinfectant, biocide, and antimicrobial coating may be used only if:

(A) its use is specified in a mold remediation protocol;

(B) it is registered by the United States Environmental Protection Agency (EPA) for the intended use; and

(C) the use is consistent with the manufacturer's labeling instructions.

(2) If a protocol specifies the use of a disinfectant, biocide, or antimicrobial coating but does not specify the brand or type of product, a remediation contractor may select the brand or type of product to be used, subject to the other provisions of this subsection. A decision by an assessment consultant or remediation contractor to use such a product must take into account the potential for occupant sensitivities and possible adverse reactions to chemicals that have the potential to be off-gassed from surfaces coated with the product.

(3) A person who applies a biocide to wood to control a wood-infesting organism must be licensed by the Structural Pest Control Service of the Texas Department of Agriculture as provided under the Texas Occupations Code, Chapter 1951 (relating to Structural Pest Control) unless exempt under the Texas Occupations Code, Chapter 1951, Subchapter B (relating to Exemptions).

§78.130.Mold Remediation of Heating, Ventilation and Air Conditioning (HVAC) Systems.

(a) All provisions of §78.100 shall apply to the assessment of mold in HVAC systems.

(b) All provisions of §78.120 shall apply to the remediation of mold in HVAC systems.

(c) Disinfectants, biocides and antimicrobial coatings. A licensee or registered worker under this chapter may apply a disinfectant, biocide or antimicrobial coating in an HVAC system only in accordance with §78.120(g). The licensee or registered worker shall apply the product only after the building owner or manager has been provided a material safety data sheet for the product, has agreed to the application, and has notified building occupants in potentially affected areas before the application. The licensee or registered worker shall follow all applicable manufacturer's label directions when using the product.

(d) Other license requirements.

(1) Persons who perform air conditioning and refrigeration contracting (including the repair, maintenance, service, or modification of equipment or a product in an environmental air conditioning system, a commercial refrigeration system, or a process cooling or heating system) must be licensed by the department as provided under the Texas Occupations Code, Chapter 1302 (relating to Air Conditioning and Refrigeration Contractors).

(2) A person who performs biomedical remediation as defined under 16 TAC, §75.10(6) must be licensed by the department in accordance with 16 TAC, Chapter 75 (relating to Air Conditioning and Refrigeration) unless exempt under 16 TAC, §75.30 (relating to Exemptions) or 16 TAC, §75.100 (relating to Technical Requirements).

§78.140.Post-Remediation Assessment and Clearance.

(a) Clearance criteria. For a remediation project to achieve clearance, a licensed mold assessment consultant shall conduct a post-remediation assessment using visual, procedural, and analytical methods. If walk-in containment is used during remediation, the post-remediation assessment shall be conducted while the walk-in containment is in place. The post-remediation assessment shall determine whether:

(1) the work area is free from all visible mold and wood rot; and

(2) all work has been completed in compliance with the remediation protocol and remediation work plan and meets clearance criteria specified in the protocol.

(b) Underlying cause of mold. Post-remediation assessment shall, to the extent feasible, determine that the underlying cause of the mold has been remediated so that it is reasonably certain that the mold will not return from that remediated cause.

(c) Analytical methods.

(1) The assessment consultant shall perform a visual, procedural, and analytical evaluation in each remediated area in order to determine whether the mold contamination identified for the project has been remediated as outlined in the remediation protocol.

(2) The consultant shall use only the analytical methods and the criteria for evaluating analytical results that were specified in the remediation protocol, unless circumstances beyond the control of the consultant and the remediation contractor or company necessitate alternative analytical methods or criteria. The consultant shall provide to the client written documentation of the need for any deviation from the remediation protocol and the alternative analytical methods and criteria selected, and shall obtain approval from the client for their use, before proceeding with the post-remediation assessment.

(3) Where visual inspection reveals deficiencies sufficient to fail clearance, analytical methods need not be used.

(d) Passed clearance report. An assessment consultant who determines that remediation has been successful shall issue a written passed clearance report to the client at the conclusion of each mold remediation project. The report must include the following:

(1) a description of relevant worksite observations;

(2) the type and location of all measurements made and samples collected at the worksite;

(3) all data obtained at the worksite, including temperature, humidity, and material moisture readings;

(4) the results of analytical evaluation of the samples collected at the worksite;

(5) copies of all photographs taken by the mold assessment consultant; and

(6) a clear statement that the project has passed clearance.

(e) Final status report. If the mold assessment consultant determines that remediation has not been successful and ceases to be involved with the project before the project passes clearance, the consultant shall issue a written final status report to the client and to the remediation contractor or company performing the project. The status report must include the items listed in subsections (d)(1) - (5) and any conclusions that the consultant has drawn.

§78.150.Photographs; Certificate of Mold Damage Remediation; Duty of Property Owner.

(a) Not later than seven calendar days after the project stop-date, the licensed mold remediation contractor or company shall provide the property owner with copies of required photographs of the scene of the mold remediation taken before and after the remediation.

(b) Not later than ten calendar days after the project stop-date, the licensed mold remediation contractor or company shall provide a Certificate of Mold Damage Remediation to the property owner on a form adopted by the Texas Commissioner of Insurance. The top section of this certificate is signed by a licensed mold assessment consultant and a mold remediation contractor for projects performed under the Texas mold assessment and remediation rules. The Certificate of Mold Damage Remediation must include the following:

(1) a statement by a licensed mold assessment consultant (not the licensed mold remediator) that based on visual, procedural, and analytical evaluation, the mold contamination identified for the project has been remediated as outlined in the mold remediation protocol; and

(2) a statement on the certificate that the underlying cause of the mold has been remediated, if the licensed mold assessment consultant determines that the underlying cause of the mold has been remediated so that it is reasonably certain that the mold will not return from that same cause.

(c) The bottom section of the Certificate of Mold Damage Remediation is signed by a licensed mold assessment consultant on mold remediation projects that may be legally performed by unlicensed persons, certifying the property does not contain evidence of mold damage.

(d) The mold assessment company or consultant and the mold remediation company or contractor shall retain copies of the completed certificate in their business files in accordance with the requirements in §78.74.

(e) If a property owner sells the property, the property owner shall provide to the buyer a copy of each Certificate of Mold Damage Remediation issued for the property under this section during the five years preceding the date the property owner sells the property.

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 April 10, 2017.

TRD-201701481

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


CHAPTER 90. OFFENDER EDUCATION PROGRAMS

The Texas Department of Licensing and Regulation (Department) proposes new rules at 16 Texas Administrative Code (TAC), Chapter 90, Subchapter A, §90.1, §90.10; Subchapter B, §§90.20 - 90.27; Subchapter C, §§90.30 - 90.34; Subchapter D, §§90.40 - 90.49; Subchapter E, §§90.50 - 90.54; Subchapter F, §90.80; and Subchapter G, §§90.90 - 90.94, regarding Offender Education Programs.

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the Department of State Health Services (DSHS) to the Texas Commission of Licensing and Regulation (Commission) and the Department. The Commission and Department completed the Phase 1 transition of seven programs on October 3, 2016.

Under Phase 2, the following six programs are being transferred from DSHS to the Commission and the Department: (1) Laser Hair Removal, Texas Health and Safety Code, Chapter 401, §§401.501 - 401.522; (2) Massage Therapy, Texas Occupations Code, Chapter 455; (3) Code Enforcement Officers, Texas Occupations Code, Chapter 1952; (4) Sanitarians, Texas Occupations Code, Chapter 1953; (5) Mold Assessors and Remediators, Texas Occupations Code, Chapter 1958; and (6) Offender Education Programs, Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). The statutory amendments transferring regulation of these six Phase 2 programs from DSHS to the Commission and the Department will take effect on September 1, 2017.

The new rules are proposed to enable the Commission and the Department to regulate the six Phase 2 programs listed above. The proposed new rules provide for the Department to perform the various functions, including licensing, compliance, and enforcement, necessary to regulate these transferred programs. The anticipated effective date of the proposed rules is November 1, 2017. The effective date will coincide with the completion of the transfer of the programs to the Commission and the Department.

The proposed new rules under 16 TAC Chapter 90 are necessary to implement S.B. 202 and to regulate the Offender Education Programs under the authority of the Commission and the Department. These proposed new rules are separate from and are not to be confused with the DSHS rules located at 25 TAC Chapter 453, regarding the Offender Education Programs (For Alcohol and Drug-Related Offenses), which are still in effect.

The Department held public summits on March 6, 2017, in Arlington, Texas; March 8, 2017, in Houston, Texas; and March 10, 2017, in Austin, Texas, to get initial feedback on a draft of the proposed rules prior to publication of the proposed rules in the Texas Register.

The proposed new Subchapter A provides the General Provisions for the proposed new rules. The proposed new §90.1 provides the statutory authority for the Commission and the Department to regulate the Offender Education Programs, which include the Alcohol Education Program for Minors, the Drug Offender Education Program, the DWI Education Program, and the DWI Intervention Program.

The proposed new §90.10 defines the terms used in the Offender Education Programs under this chapter.

The proposed new Subchapter B provides the instructor requirements.

The proposed new §90.20 creates the instructor certification requirement.

The proposed new §90.21 details the instructor certification eligibility requirements.

The proposed new §90.22 explains the instructor training course and examination required for the instructor certification.

The proposed new §90.23 details the application process for obtaining an instructor certification.

The proposed new §90.24 establishes the instructor certification term and renewal requirements.

The proposed new §90.25 explains the instructor teaching and continuing education requirements.

The proposed new §90.26 details the audit process for instructor continuing education.

The proposed new §90.27 establishes instructor responsibilities.

The proposed new Subchapter C provides the program/provider certification requirements.

The proposed new §90.30 establishes the program/provider certification requirements.

The proposed new §90.31 details the program/provider certification application for headquarter locations.

The proposed new §90.32 details the program/provider certification requirements for branch sites and other locations.

The proposed new §90.33 establishes the program/provider certification term and renewal requirements.

The proposed new §90.34 explains the change of address requirement and the requirement to provide certain information for program/provider certifications.

The proposed new Subchapter D provides the program requirements for curriculum, courses, classrooms, and certificates.

The proposed new §90.40 details the program curriculum and materials for all Offender Education Programs under this chapter.

The proposed new §90.41 addresses the process for the approval of the program curriculum and rules for the DWI Education Program with three other state agencies.

The proposed new §90.42 addresses the process for the adoption of the program rules for the Drug Offender Education Program with another state agency.

The proposed new §90.43 details the general program and course requirements for all Offender Education Programs under this chapter.

The proposed new §90.44 provides additional course requirements for the Drug Offender Education Program.

The proposed new §90.45 provides additional course requirements for the Alcohol Education Program for Minors.

The proposed new §90.46 provides additional course requirements for the DWI Education Program.

The proposed new §90.47 provides additional course requirements for the DWI Intervention Program.

The proposed new §90.48 establishes classroom facilities and equipment requirements.

The proposed new §90.49 creates course completion certificates for participants in Offender Education Programs.

The proposed new Subchapter E provides the program requirements for administration and other responsibilities.

The proposed new §90.50 details the program administration requirements.

The proposed new §90.51 explains the recordkeeping requirements regarding course participants.

The proposed new §90.52 provides for annual reports.

The proposed new §90.53 establishes the confidentiality requirements for the Offender Education Programs.

The proposed new §90.54 prohibits discrimination in the Offender Education Programs.

The proposed new Subchapter F establishes fees for the Offender Education Programs under this chapter.

The proposed new §90.80 details the applicable fees in the Offender Education Programs.

The proposed new Subchapter G provides audit and enforcement provisions.

The proposed new §90.90 explains the monitoring and audits of the Offender Education Programs.

The proposed new §90.91 requires cooperation with the Department regarding complaints.

The proposed new §90.92 allows for administrative penalties and sanctions to be imposed.

The proposed new §90.93 specifies the authority to enforce the statutes and this chapter.

The proposed new §90.94 details additional conduct subject to disciplinary action for Offender Education Programs and specified individuals.

Brian E. Francis, Executive Director, has determined that for each year of the first five-year period the proposed new rules are in effect, there will be no additional costs or reductions in costs to the State as a result of enforcing or administering the proposed new rules. There is no estimated decrease in revenue to the State as a result of enforcing and administering these rules. However, the proposed rules allow for the Department's standard program fees to include a dishonored payment device fee of $50; a criminal history evaluation letter fee of $25; and a duplicate license fee of $25. Also, the rules propose to increase the fee for moving program/provider headquarters within the same county from $5 to $25 to correspond with the duplicate certificate fee. The Department does not anticipate a significant increase of revenue as a result of these fees because they are discretionary based on the needs and actions of licensees. Additionally, there is no estimated loss or increase in revenue to local government as a result of enforcing or administering the rules.

Mr. Francis also has determined that for each year of the first five-year period that the proposed new rules are in effect, the public benefit will include that the rules implement the statutory requirements under the authority of the Commission and the Department and provide details that are not found in the enabling acts. The rules also have been formatted and organized to assist the public, the regulated community, and the Department in easily finding specific rules. In addition, the new rules are streamlined so as not to duplicate provisions that are already located in the statutes and rules of the Commission and Department in Texas Occupations Code, Chapter 51 and in 16 TAC Chapter 60, which apply to all programs regulated by the Commission and the Department. In addition, the proposed rules provide for the effective and efficient regulation of offender education programs, which promote the health, safety, and welfare of drug and alcohol offenders. The proposed rules also protect the safety and welfare of the general public.

There will be no adverse effect on small or micro-businesses as a result of the proposed new rules. There are no anticipated economic costs to persons who are required to comply with the proposed new rules. The above mentioned standard program fees are discretionary and will not constitute a burden considering a minimal number of licensees might need to pay them based on the needs and actions of the individuals and licensees.

Since the agency has determined that the proposed new rules will have no adverse economic effect on small or micro-businesses, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, under Texas Government Code §2006.002, is not required.

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032; or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §90.1, §90.10

The new rules are proposed under Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program), which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). No other statutes, articles, or codes are affected by the proposal.

§90.1.Authority.

This chapter is promulgated under the authority of Occupations Code, Chapter 51; Alcoholic Beverage Code, §106.115 (Alcohol Education Program for Minors); Transportation Code, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program).

§90.10.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly states otherwise.

(1) Administrator--An individual who is a certified Instructor in good standing and who is authorized to act on behalf of the certified Provider in all respects relating to compliance with this chapter.

(2) Alcohol Education Program for Minors--An educational program provided to minors pursuant to Alcoholic Beverage Code §106.115 that is designed to:

(A) present information to participants on the effects of alcohol upon behavior and upon the lives of persons who use alcohol;

(B) help participants identify their own drinking patterns or problems;

(C) educate participants about the laws relating to possession, consumption, and purchase of alcoholic beverages and laws relating to minors under the influence of alcohol; and

(D) assist participants in developing a plan to reduce the probability of involvement in future alcohol-related illegal behavior or detrimental activity.

(3) Annual Reporting Period--The period of time beginning September 1 of each year and ending August 31 of the following year.

(4) Branch Office/Site--An additional Offender Education Program/Provider site that is located in the same or adjacent county as the headquarters of a certified Offender Education Provider.

(5) Certificates of Course Completion--Uniform, serially numbered certificates of completion required and designated by the department to be used by certified Providers for dissemination to Participants upon successful completion of an Offender Education Program.

(6) Commission--The Texas Commission of Licensing and Regulation.

(7) Continuing Education Hour--At least 50 minutes of participation in an organized, systematic learning experience which deals with and is designed for the acquisition of knowledge, skills, and information on drug or alcohol-related topics, as applicable to the particular Instructor certification.

(8) Continuing Education Seminar--A department-sponsored continuing education seminar, class or course for an applicable Offender Education Instructor certification.

(9) Course Records--Offender Education participants' personal data forms, pre- and post-tests, self-assessments, screening instrument(s), homework assignments, action plans, and any other written material required or used in the offender education class instruction.

(10) Course Roster--A form used to record data on all offender education participants enrolled in the course and to record attendance data on those participants at each class throughout the course.

(11) Course Size--The number of Offender Education participants in a course, to be calculated according to the number of participants officially enrolled in the course or the greatest number of participants in attendance in any class within a course, whichever is greater.

(12) Department--The Texas Department of Licensing and Regulation.

(13) Drug Offender--A person whose license is suspended under Transportation Code §521.372 (relating to Automatic Suspension; License Denial) and any amendments thereto, for final conviction of an offense described in that section.

(14) Drug Offender Education Program--An educational program provided to Drug Offenders pursuant to Transportation Code §521.374 that is designed to:

(A) educate participants on the dangers of drug use/abuse and associated illegal activities;

(B) provide information on the effects of drug use/abuse and related illegal activities on personal, family, social, economic and community life;

(C) assist participants in evaluating their own abusive patterns connected with their use of drugs or associated illegal activities; and

(D) assist participants in developing a plan for positive lifestyle changes to reduce chances of being involved in future drug use/abuse and related illegal behaviors.

(15) DWI--An offense relating to driving or operating a motorized vehicle while intoxicated, as described in Penal Code §§49.04 - 49.08, relating to Intoxication Offenses.

(16) DWI Education Program--An educational program provided to persons convicted of a DWI offense and placed on community supervision pursuant to Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) that is designed to:

(A) present information on the effects of alcohol and other drugs on driving skills;

(B) help participants identify their own individual drinking or drugged driving patterns; and

(C) assist participants in developing a plan to reduce the probability that they will be involved in future DWI behavior.

(17) DWI Intervention Program--An educational program provided to persons punished under Penal Code §49.09, relating to Enhanced Offenses and Penalties, pursuant to Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) that is designed to:

(A) educate participants about chemical dependency and the problems associated with chemical dependency;

(B) provide intensive instruction about specific actions participants can take to prevent future DWI offenses; and

(C) instruct participants about methods and ways to make necessary lifestyle changes in order to prevent alcohol/drug-related problems in other areas of the participants' lives.

(18) Executive Director--The executive director of the department.

(19) Instructor Applicant--A term describing an individual from the period when the individual submits an application for admission into an Instructor training course until the point where certification is granted or denied.

(20) Instructor Certification Period--The period of time beginning with the date Instructor certification was granted to instruct an applicable Offender Education curriculum, and ending two years after the date the certification was issued.

(21) Instructor Training Class--A session of an Instructor training course.

(22) Instructor Training Course--The complete series of Instructor training class sessions.

(23) Minor--A person under the age of 21 years.

(24) Offender Education Class--A session of an Offender Education course.

(25) Offender Education Course--The complete series of Offender Education class sessions.

(26) Offender Education Program (Program)--An Alcohol Education Program for Minors, Drug Offender Education Program, DWI Education Program, or DWI Intervention Program.

(27) Offender Education Provider (Provider)--An individual or entity holding certification of approval from the department to offer or provide the Alcohol Education Program for Minors, Drug Offender Education Program, DWI Education Program, or DWI Intervention Program.

(28) Participant--An individual who attends a department-approved Offender Education Program.

(29) Program/Provider Headquarters--The primary administrative center of a certified Offender Education Provider that is identified as the business address in the Provider's application.

(30) Screening Instrument--A written device approved by the department and required to be administered to each Program participant for the purpose of:

(A) identifying indicators of a potential substance abuse problem; and

(B) making recommendations for further evaluation, where indicated by the screening instrument.

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 April 10, 2017.

TRD-201701482

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER B. INSTRUCTOR REQUIREMENTS

16 TAC §§90.20 - 90.27

The new rules are proposed under Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program), which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). No other statutes, articles, or codes are affected by the proposal.

§90.20.Instructor Certification Required.

(a) An individual who teaches any Offender Education Program must have a current Instructor certification issued by the department, and the Instructor certification must be for the type of Offender Education Program the individual is teaching.

(b) A certified Instructor must instruct only for an Offender Education Provider that holds a program certification for the particular type of Offender Education Program.

(c) A certified Instructor must utilize only the Offender Education curriculum approved for the particular type of Offender Education Program for which the Instructor is certified.

(d) A certified Instructor must comply with all requirements of this chapter.

§90.21.Instructor Certification - Eligibility Requirements.

(a) To be eligible to become certified as an Instructor for a DWI Education Program, Drug Offender Education Program, or Alcohol Education Program for Minors, an individual must:

(1) have a minimum of an associate's degree in the field of psychology, sociology, counseling, social work, criminal justice, education, nursing, health, or traffic safety;

(2) be a licensed chemical dependency counselor, registered counselor intern, licensed social worker, licensed professional counselor, licensed professional counselor intern, certified teacher, licensed psychologist, licensed physician or psychiatrist, probation or parole officer, adult or child protective services worker, licensed vocational nurse, or registered nurse; or

(3) have at least one year of documented experience in case management or education relating to substance abuse and/or mental health.

(b) To be eligible to become certified as an Instructor for a DWI Intervention Program, an individual must:

(1) either:

(A) be a licensed chemical dependency counselor, registered counselor intern, licensed social worker, licensed professional counselor, licensed professional counselor intern, licensed psychologist, licensed physician or psychiatrist; or

(B) possess, at a minimum, an associate's degree in the field of psychology, sociology, counseling, social work, criminal justice, education, nursing, or health; and

(2) have a minimum of two years of documented experience providing direct client services directly related to the applicable internship, licensing, or education documented under subsection (a)(1), to persons with substance abuse problems or mental disorders.

§90.22.Instructor Certification - Instructor Training Course and Examination.

(a) To become a certified Instructor for a particular type of Offender Education Program, an individual must successfully complete the applicable department-approved and sponsored Offender Education Instructor training course.

(b) An Instructor Applicant must pay the department's third party contractor an Instructor training fee after acceptance into a specific training course.

(c) An Instructor Applicant must attend all classes of the instructor training course in their entirety.

(d) An Instructor Applicant must achieve passing scores on both the participant teaching presentation and the written exam to successfully complete the Instructor training course.

(e) Any Instructor Applicant who does not achieve a passing score on either the participant teaching presentation or the written exam at the Instructor training course will have one additional opportunity to pass the written exam or participant teaching presentation, as applicable, within 30 days after the date of completing the instructor training course, or as otherwise directed by the department.

(f) If the Instructor Applicant does not achieve a passing score on the applicable written exam or participant teaching presentation the second time, the Instructor Applicant will not have successfully completed the Instructor training course and must reapply for the applicable training and certification.

(g) Any Instructor Applicant who does not successfully complete the Instructor training course, including any permitted retesting, will be required to return the curriculum manual to the department by no later than the end of the class session at which unsuccessful completion of the course is determined or at the time of retest, whichever is later.

§90.23.Instructor Certification - Application.

(a) To apply for an Instructor certification for a particular type of Offender Education Program, an individual must:

(1) submit a completed application on a department-approved form for the applicable Offender Education Program;

(2) submit proof of meeting the eligibility requirements under §90.21; and

(3) successfully pass a criminal history background check by the department.

(b) There is no fee paid to the department to apply for the Instructor certification.

(c) If the department determines that the Instructor Applicant has met the requirements under subsection (a), the department will notify the Instructor Applicant that the Instructor Applicant has been accepted to enroll in the department-approved and sponsored Offender Education Instructor training course for the applicable Offender Education Program.

(d) Upon successful completion of the department-approved and sponsored Offender Education Instructor training course, including testing and any retesting, and absent any other reasons for denial, the Instructor Applicant will receive certification from the department as an Instructor for the applicable Offender Education Program.

§90.24.Instructor Certification Term; Renewals.

(a) Instructor certifications for all Offender Education Programs are valid for two years and may be renewed. An Instructor certification will expire two years after the date the certification was issued.

(b) To renew an Instructor's certification, the Instructor must:

(1) submit a completed renewal application on a department-approved form;

(2) complete the teaching and the continuing education requirements for the applicable Offender Education Program curriculum specified in §90.25;

(3) comply with the continuing education audit process described under §90.26, if selected for an audit; and

(4) successfully pass a criminal history background check performed by the department.

(c) There is no fee paid to the department to renew the instructor certification.

(d) Absent any other reasons for denial, the department will issue a renewal certification to an Instructor who has met all the requirements for renewal.

(e) If an Instructor's certification expires prior to submission of a complete renewal application that demonstrates compliance with all renewal requirements, the Instructor must reapply and successfully complete the applicable initial Instructor Training Course again to become certified to instruct for the applicable Offender Education Program.

(f) An Instructor may not instruct any Offender Education Programs with an expired Instructor certification.

§90.25.Instructor Teaching and Continuing Education Requirements.

(a) Drug Offender Education Instructor Requirements.

(1) Each Drug Offender Education Instructor must teach a minimum of four complete Drug Offender Education courses and attend at least one department-sponsored Drug Offender Education Instructor continuing education seminar during the Instructor's certification period, and each subsequent Instructor certification period.

(2) If substantial intervening changes are made to the Drug Offender Education curriculum, or significant updates are required to curriculum material, Instructors for Drug Offender Education shall attend any additional department-sponsored Drug Offender Education Instructor continuing education seminar or special meeting regarding which the department sends them notice.

(3) Instructors who are licensed chemical dependency counselors, licensed professional counselors, licensed psychologists, licensed psychiatrists, or licensed social workers may complete 20 hours of continuing education that is directly drug-related, in lieu of attending the department-sponsored continuing education seminar. If selected for a continuing education audit under §90.26, proof of these continuing education hours must be submitted to the department in a manner prescribed by the department.

(4) Continuing education hours obtained in a department-sponsored Drug Offender Education Instructor continuing education seminar may not be used to fulfill the continuing education requirement of another Offender Education certification.

(b) Alcohol Education Program for Minors Instructor Requirements.

(1) Each Alcohol Education Program for Minors Instructor shall teach a minimum of four complete Alcohol Education Program for Minors courses and attend at least one department-sponsored Alcohol Education Program for Minors Instructor continuing education seminar during the Instructor's certification period, and each subsequent Instructor certification period.

(2) If substantial intervening changes are made to the Alcohol Education Program for Minors curriculum, or significant updates are required to curriculum material, Instructors for Alcohol Education Program for Minors shall attend any additional department-sponsored Alcohol Education Program for Minors Instructor continuing education seminar or special meeting regarding which the department sends them notice.

(3) Instructors who are licensed chemical dependency counselors, licensed professional counselors, licensed psychologists, licensed psychiatrists, or licensed social workers may complete 20 hours of continuing education that is directly alcohol-related, in lieu of attending the department-sponsored continuing education seminar. If selected for a continuing education audit under §90.26, proof of these continuing education hours must be submitted to the department in a manner prescribed by the department.

(4) Continuing education hours obtained in a department-sponsored Alcohol Education Program for Minors Instructor continuing education seminar may not be used to fulfill the continuing education requirement of another Offender Education certification.

(c) DWI Education Instructor Requirements.

(1) Each DWI Education Instructor shall teach a minimum of four complete DWI Education courses and attend at least one department-sponsored DWI Education Instructor continuing education seminar during the DWI Education Instructor's certification period, and each subsequent Instructor certification period.

(2) If substantial intervening changes are made to the DWI Education curriculum, or significant updates are required to curriculum material, Instructors for DWI Education shall attend any additional department-sponsored DWI Education Instructor continuing education seminar or special meeting regarding which the department sends them notice.

(3) Instructors who are licensed chemical dependency counselors, licensed professional counselors, licensed psychologists, licensed psychiatrists, or licensed social workers may complete 20 hours of continuing education that is directly alcohol-related, in lieu of attending the department-sponsored continuing education seminar. If selected for a continuing education audit under §90.26, proof of these continuing education hours must be submitted to the department in a manner prescribed by the department.

(4) Continuing education hours obtained in a department-sponsored DWI Education Instructor continuing education seminar may not be used to fulfill the continuing education requirement of another Offender Education certification.

(d) DWI Intervention Instructor Requirements.

(1) Each DWI Intervention Instructor shall teach a minimum of two complete DWI Intervention courses and attend at least one department-sponsored DWI Intervention Instructor continuing education seminar during the Instructor's certification period, and each subsequent Instructor certification period.

(2) If substantial intervening changes are made to the DWI Intervention curriculum, or significant updates are required to curriculum material, Instructors for DWI Intervention shall attend any additional department-sponsored DWI Intervention Instructor continuing education seminar or special meeting regarding which the department sends them notice.

(3) Instructors who are licensed chemical dependency counselors, licensed professional counselors, licensed psychologists, licensed psychiatrists, or licensed social workers may complete 20 hours of continuing education that is directly alcohol-related, in lieu of attending the department-sponsored continuing education seminar. If selected for a continuing education audit under §90.26, proof of these continuing education hours must be submitted to the department in a manner prescribed by the department.

(4) Team teaching, with no more than two certified instructors, may be counted towards the fulfillment of the teaching requirement.

(5) Continuing education hours obtained in a department-sponsored DWI Intervention Instructor continuing education seminar may not be used to fulfill the continuing education requirement of another Offender Education certification.

(e) An Instructor must pay a continuing education seminar fee for each Instructor certification to the department's third party contractor.

§90.26.Instructor Continuing Education Audits -All Programs.

(a) The department shall employ an audit system for continuing education reporting. The instructor shall be responsible for maintaining a record of his or her continuing education experiences. The certificates, diplomas, or other documentation verifying earning of continuing education hours are not to be forwarded to the department at the time of renewal unless the instructor has been selected for audit.

(b) The audit process shall be as follows.

(1) The department shall select for audit a random sample of instructors for each renewal month. Instructors will be notified of the continuing education audit when they receive their renewal documentation.

(2) If selected for an audit, the instructor shall submit copies of certificates, transcripts or other documentation satisfactory to the department, verifying the instructor's attendance, participation and completion of the continuing education. All documentation must be provided at the time of renewal.

(3) Failure to timely furnish this information or providing false information during the audit process or the renewal process are grounds for disciplinary action against the instructor.

(4) An instructor who is selected for a continuing education audit may renew through the online renewal process, if available. However, the instructor will not be considered renewed until the required continuing education documents are received, accepted and approved by the department.

(5) Instructors will not be renewed until the continuing education requirements have been met.

§90.27.Instructor Responsibilities.

(a) A certified Instructor is only authorized to instruct the particular type of Offender Education Program for which an Instructor certification is issued.

(b) A certified Instructor may only instruct for an Offender Education Provider that holds the applicable program certification from the department.

(c) A certified Instructor may only utilize the curriculum approved for the particular type of Offender Education Program for which the Instructor is certified.

(d) Certified Instructors are required to report, in writing, any felony or misdemeanor conviction against themselves or other certified Instructors.

(e) A certified Instructor must notify the department within 30 days of any change in the Instructor's name, address, telephone number, or e-mail address.

(f) A certified Instructor must provide the Instructor's certification number and the Offender Education Program/Provider certification number to each participant and provide information regarding how to file a complaint with the department to each participant.

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 April 10, 2017.

TRD-201701483

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER C. PROGRAM/PROVIDER CERTIFICATION REQUIREMENTS

16 TAC §§90.30 - 90.34

The new rules are proposed under Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program), which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). No other statutes, articles, or codes are affected by the proposal.

§90.30.Program/Provider Certification Requirement.

(a) Any individual or entity seeking to offer, provide, or operate an Offender Education Program must have a current Offender Education Program certification of approval (certification) for the applicable program issued by the department.

(b) The individual or entity holding a current Offender Education Program certification of approval (certification) from the department is a certified Offender Education Provider for the applicable program.

(c) A certified Offender Education Program must be taught exclusively by Instructors certified to instruct the particular type of Offender Education Program.

(d) A certified Offender Education Program must be conducted in accordance with, and as described in, the applicable Instructor manual authorized and approved by the department under §90.40.

(e) A certified Offender Education Program must utilize only the curriculum approved for the particular type of Offender Education Program.

(f) An approved Offender Education Program/Provider must comply with all requirements of this chapter.

§90.31.Program/Provider Certification Application - Headquarters.

(a) An individual or entity seeking to obtain an Offender Education Program/Provider certification must:

(1) submit a completed Program application on a department-prescribed form;

(2) identify the certified Instructor who will act as Administrator; and

(3) submit the Program initial application fee specified under §90.80.

(b) The Offender Education Program applicant shall notify the department in writing within 30 days of any change in Administrator, headquarters or branch site address, telephone number, e-mail address, and website address.

(c) If an applicant has met all requirements for the applicable type of Offender Education Program, the department will issue a Program/Provider certification for the applicable type of Offender Education Program.

(d) The certification becomes effective on the date the certification is issued and expires two years after the date of issuance.

§90.32.Program/Provider Certification Application - Branch Sites and Other Locations.

(a) Branch Sites--Same or Adjacent Counties.

(1) A Provider, who holds a current Offender Education Program certificate and who wants to offer the applicable Offender Education Program or Course at a location other than the headquarters, but in the same or adjacent county as the Program/Provider's headquarters, must submit:

(A) the branch site application on a department-approved form; and

(B) the branch site fee specified under §90.80.

(2) If approved, the department will then issue a certificate authorizing the Provider to offer the applicable Offender Education Program or Course at that approved branch site.

(b) Non-Adjacent Counties.

(1) A Provider, who holds a current Offender Education Program certificate and who wants to offer the applicable Offender Education Program or Course at a site that is not located in the same or adjacent county as the Program/Provider's headquarters, must submit:

(A) a separate Program/Provider application on a department-approved form; and

(B) the initial Program/Provider application fee specified under §90.80.

(2) The separate Program/Provider application shall designate a Program Administrator and Provider headquarters, and may establish branch sites in accordance with the provisions of this section.

(3) If approved, the department will then issue a separate Program/Provider certification authorizing the Provider to offer the applicable course at that approved Program headquarters.

(c) Changing/Moving Headquarters.

(1) Same County. A Program/Provider requesting to move its headquarters to a new location in the same county as the current headquarters must submit:

(A) a completed application on a department-approved form; and

(B) the moving headquarters (same county) fee specified under §90.80.

(2) Different County. A Program/Provider requesting to move its headquarters to a new location that is not in the same county as the current headquarters must submit:

(A) a separate completed Program/Provider application on a department-approved form; and

(B) the moving headquarters (different county) fee as specified under §90.80.

§90.33.Program/Provider Certification Term; Renewal.

(a) An Offender Education Provider seeking renewal of its Program certification of approval shall submit:

(1) a completed Program/Provider renewal application on a department-approved form; and

(2) the Program/Provider renewal fee specified under §90.80.

(b) The renewal certification becomes effective on the date the certification is issued and expires two years after the date of issuance.

(c) The department shall issue a renewal Program certification to a Program/Provider that has met all the requirements for renewal.

(d) A Programs/Provider that fails to submit a complete renewal application and pay the renewal fee before the Program's/Provider's expiration date will no longer hold a current certification to provide the applicable educational program. The Program/Provider must reapply and submit an initial Program application and fee as required under §90.31 to obtain certification as an approved Offender Education Program/Provider.

(e) The Offender Education Provider may not offer, provide or operate an Offender Education Program with an expired Program/Provider certification.

(f) If a Program/Provider certification expires, then any branch site certifications to the Program/Provider headquarters also expire. Offender Education Programs may not be operated at branch sites if the Program/Provider certification for the headquarters has expired.

§90.34.Program/Provider Certification - Change of Address and Providing Information.

(a) An Offender Education Program/Provider must notify the department in writing within 30 days of any change in the Program/Provider's headquarters or branch site address, telephone number, e-mail address, website address, or change in the Administrator or Instructor(s).

(b) The Offender Education Program/Provider must provide the Program/Provider certification number and the Instructor certification number for the particular Program and course to each participant and provide information regarding how to file a complaint with the department to each participant.

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 April 10, 2017.

TRD-201701484

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER D. PROGRAM REQUIREMENTS - CURRICULUM, COURSE, CLASSROOMS, CERTIFICATES

16 TAC §§90.40 - 90.49

The new rules are proposed under Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program), which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). No other statutes, articles, or codes are affected by the proposal.

§90.40.Program Curriculum and Materials - All Programs.

(a) Offender Education Programs shall use the most up-to-date version of the uniform curricula and of any screening instrument approved by the department.

(b) The following curricula are approved for the applicable program:

(1) Alcohol Education Program for Minors -- the Alcohol Education Program for Minors Administrator/Instructor Manual;

(2) Drug Offender Education Program -- the Texas Drug Offender Education Program Administrator/Instructor Manual;

(3) DWI Education Program -- the Texas DWI Education Program Administrator/Instructor Manual; and

(4) DWI Intervention Program -- the Texas DWI Intervention Administrator/Instructor Program Manual.

(c) Any supplemental media used in an Offender Education Program must have prior written approval from the department. The Offender Education Program seeking approval must demonstrate that it meets the following minimum conditions for approval of supplemental media:

(1) the Program must still use all media required by the applicable approved curriculum for each module;

(2) the Program, with use of the supplemental media, must exceed the minimum number of classes and hours of instruction required per course by the length of any supplemental media; and

(3) the content of any supplemental medium must relate directly to the objectives of the curriculum module in which it is used.

§90.41.Program Curriculum and Rules - DWI Education Program.

(a) Pursuant to Code of Criminal Procedure, Articles 42A.403 and 42A.405, the commission and the department shall jointly approve a DWI Education Program and rules with the Texas Department of Public Safety; the Traffic Safety Section of the Traffic Operations Division of the Texas Department of Transportation; and the Criminal Justice Assistance Division of the Texas Department of Criminal Justice.

(b) Representatives from the agencies identified in subsection (a), are responsible for approving or disapproving the educational program curriculum or curriculum changes, as set forth in the Texas DWI Education Program Administrator/Instructor Manual and required to be used by DWI Education Programs under §90.40, as well as any rules and rule changes proposed for publication relating to certification standards for DWI Education Programs and their Instructors.

(c) For any proposed changes to the educational program curriculum or rules for the DWI Education Program, the department will notify the designated representatives from the agencies identified in subsection (a) and solicit input during the process to revise the educational program curriculum or during the rulemaking process.

§90.42.Program Rules - Drug Offender Education Program.

(a) Pursuant to Transportation Code §521.374, the department is responsible for approving a Drug Offender Program under rules adopted by the commission and the Texas Department of Public Safety (DPS).

(b) Pursuant to Transportation Code §521.375, the commission and DPS are responsible for jointly adopting rules for the qualification and approval of providers of the Drug Offender Education Program.

(c) For any proposed changes to the educational program rules for the Drug Offender Education Program, the department will notify the designated representatives from DPS and solicit input during the rulemaking process.

§90.43.General Program and Course Requirements - All Programs.

(a) All Offender Education Programs must use the applicable curriculum approved in §90.40, including all required videos, slides or transparencies, participant workbooks, booklets, and other resources or written materials. The applicable curriculum must be presented in the prescribed manner and sequence.

(b) All courses must be taught by a certified Instructor for the applicable Offender Education Program. Each Instructor must be physically present in the classroom with all of the participants for each class. A single Instructor must teach the entire course for all Offender Education Programs, with the exception of DWI Intervention Programs, which may allow team-teaching utilizing no more than two certified Instructors.

(c) The Offender Education Program/Provider must provide the Program/Provider certification number and the Instructor certification number for the particular Program and course to each participant and provide information regarding how to file a complaint with the department to each participant.

(d) Offender Education Programs must require participants to attend all class sessions within a course in the proper sequence.

(e) The Program must make provisions for persons unable to read and/or speak English. All classes in a single course must be taught in the same language.

(f) The Program must screen each participant and offer appropriate referral information to the participant, based upon the numerical score and accompanying referral recommendations on the approved Screening Instrument required to be administered. The Screening Instrument must be administered by the Administrator or course Instructor, or under their direct supervision.

(g) The Administrator or course Instructor for each Offender Education Program must make available a current listing or roster of available chemical dependency counseling and treatment resources in the area to each participant whose numerical score and accompanying referral recommendations on the approved Screening Instrument required to be administered indicate a potential substance abuse problem requiring further evaluation.

(h) All required registration, initial data collection, and administration of the Screening Instrument must be completed before commencement of the first class session.

(i) At the end of each course, the course Instructor for each Offender Education Program must administer a participant course evaluation.

(j) The course Instructor for all Offender Education Programs shall conduct an exit interview with each participant, as outlined in the applicable educational program manual.

§90.44.Additional Course Requirements for the Drug Offender Education Program.

(a) In addition to the requirements under §90.43, each Drug Offender Education Program must:

(1) conduct the prescribed drug offender education course a minimum of two times during each annual reporting period;

(2) provide a minimum of 15 hours of class instruction per course;

(3) provide a minimum of five class sessions of instruction per course;

(4) conduct class sessions which are not longer than three hours in length, and not shorter than two hours in length;

(5) conduct no more than one class session per day; and

(6) conduct courses and each class with no more than 30 participants and with no fewer than three participants.

(b) Each Drug Offender Education Program must administer and evaluate pre- and post-course test instruments for each participant.

§90.45.Additional Course Requirements for the Alcohol Education Program for Minors.

(a) In addition to the requirements under §90.43, each Alcohol Education Program for Minors must:

(1) conduct the prescribed alcohol education course a minimum of two times during each annual reporting period;

(2) provide a minimum of six hours of class instruction per course;

(3) conduct class sessions which are not longer than three hours in length;

(4) conduct no more than one class session per day; and

(5) conduct courses and each class with no more than 25 participants and with no fewer than three participants (not including parents and guardians).

(b) The Program must administer and evaluate pre- and post-course test instruments for each participant.

§90.46.Additional Course Requirements for the DWI Education Program.

(a) In addition to the requirements under §90.43, each DWI Education Program must:

(1) conduct the prescribed DWI education course a minimum of two times during each annual reporting period;

(2) provide a minimum of 12 hours of instruction per course;

(3) provide no more than four hours of instruction in any one day; and

(4) conduct courses and each class with no more than 30 participants and with no fewer than three participants.

(b) The Program must administer and evaluate pre- and post-course test instruments for each participant.

(c) Within ten working days after completion of the course, the Instructor must notify the appropriate community supervision and corrections department and forward a copy of the certificate of completion to the Texas Department of Public Safety (DPS).

(d) If the participant's deadline for completing the course is earlier than ten working days after the participant's successful completion of the course, the Instructor must, by no later than the participant's deadline:

(1) forward a copy of the certificate of completion to DPS; and

(2) notify the appropriate community supervision and corrections department, if requested by the participant, DPS, the appropriate community supervision and corrections department, or the court.

§90.47.Additional Course Requirements for DWI Intervention Programs.

(a) In addition to the requirements under §90.43, each DWI Intervention Program must:

(1) conduct the prescribed DWI intervention course a minimum of one time during each annual reporting period;

(2) provide a minimum of 30 hours of class instruction per course;

(3) conduct class sessions which are not longer than three hours in length and not shorter than two hours in length;

(4) conduct no more than one class session per day;

(5) conduct no more than two class sessions per week;

(6) conduct courses and each class with no more than 15 participants and with no fewer than three participants;

(7) provide make-up class sessions for a maximum of two excused absences; and

(8) conduct a minimum of two sessions with each participant individually and an individual exit interview with each participant.

(b) Within ten working days after completion of the course the Instructor must notify the appropriate community supervision and corrections department and forward a copy of the certificate of completion to Texas Department of Public Safety (DPS).

(c) If the participant's deadline for completing the course is earlier than ten working days after the participant's successful completion of the course, the Instructor must, by no later than the participant's deadline:

(1) forward a copy of the certificate of completion to DPS; and

(2) notify the appropriate community supervision and corrections department, if requested by the participant, DPS, the appropriate community supervision and corrections department, or the court.

§90.48.Classroom Facilities and Equipment.

(a) Offender Education Programs and Instructors must conduct all classes in appropriate classroom facilities and settings which are in compliance with the Americans with Disabilities Act, 42 United States Code, §12101 et seq. The classrooms and setting shall be conducive to study and shall have:

(1) a sufficient number of tables or desks to accommodate each participant without crowding;

(2) a number of seats sufficient to seat each participant;

(3) sufficient lighting;

(4) appropriate acoustics and climate control; and

(5) Classroom facilities must be easily accessible to all class participants.

(b) Offender Education Programs/Providers and Instructors may not conduct class sessions at a personal residence.

(c) Audiovisual equipment must be in good working order and in good condition for use in class instruction.

(d) Television monitors and projection screens must be at least 25 inches diagonal and videos and slides/transparencies must be maintained in a high quality condition.

(e) Slides/transparencies and videos must be displayed in a manner which produces a clear image and allows all participants to have an unobstructed view.

(f) Offender Education Programs/Providers and Instructors must ensure that no portion of any Offender Education course is videotaped or otherwise recorded or broadcast.

§90.49.Course Completion Certificates for Participants.

(a) All certified Offender Education Programs must provide each participant who successfully completes the applicable Offender Education Program, within five days of successful completion, a serially numbered uniform certificate of course completion required and designated for such use by the department. If an exit interview is required, the course may not be deemed to be successfully completed and a certificate of course completion may not be issued until the exit interview has been conducted.

(b) All approved Offender Education Programs must maintain an ascending numerical accounting record of all issued and un-issued certificates.

(c) The applicable Offender Education Program, Administrator, and course Instructor are responsible for ensuring that an original certificate of completion is issued to each participant who successfully completes the course. All Offender Education Programs must retain one copy for the Program's files.

(d) Each Offender Education Program must develop procedures for issuing duplicate certificates.

(1) The procedures must ensure that the duplicate certificate is a new certificate, is clearly identified as being a duplicate of a previously-issued certificate, and includes the control number of the previously-issued certificate.

(2) The Offender Education Program must indicate at the bottom of the Course Roster on which the participant's original control number was recorded that a duplicate certificate was issued and shall show the new control number and date of issuance for the duplicate certificate.

(e) If an Offender Education Program/Provider allows its certification to expire or otherwise loses its certification, it must, within 30 days after expiration or other termination of the certification, return all unused certificates of completion to the department.

(f) Additional Requirements for DWI Education Programs and DWI Intervention Programs.

(1) Within ten working days of course completion, the DWI Education Program Instructor or the DWI Intervention Program Instructor, as applicable, must forward a copy of the certificate of completion to the Texas Department of Public Safety (DPS) and notify the appropriate community supervision and corrections department.

(2) If the participant's deadline for completing the course is earlier than ten working days after the participant's successful completion of the course, the DWI Education Program Instructor or DWI Intervention Program Instructor, as applicable, must, by no later than the participant's deadline:

(A) forward a copy of the certificate of completion to DPS; and

(B) notify the appropriate community supervision and corrections department, if requested by the participant, DPS, the appropriate community supervision and corrections department, or the court.

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 April 10, 2017.

TRD-201701485

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER E. PROGRAM REQUIREMENTS - ADMINISTRATION AND OTHER RESPONSIBILITIES

16 TAC §§90.50 - 90.54

The new rules are proposed under Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program), which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). No other statutes, articles, or codes are affected by the proposal.

§90.50.Program Administration.

(a) Compliance. An Offender Education Program/Provider is responsible for all aspects of Program compliance with this chapter, including any noncompliance related to the conduct of a Program Instructor, Administrator, owner, or other personnel.

(b) Program Administrator.

(1) Each Offender Education Program/Provider must designate an Administrator who must ensure the Program's/Provider's compliance with the administrative requirements of this section and the proper operation of the Program in compliance with all requirements of this chapter.

(2) Nothing in this subsection shall limit the concurrent responsibility of an Administrator or Instructor for that individual's own conduct.

(3) An Administrator must be in good standing as a certified Instructor for the applicable program and must meet all of the requirements of program Instructors.

(4) An Offender Education Program that does not have a currently certified Administrator on record with the department will not be authorized to offer the applicable Offender Education course until the Offender Education Program designates a new, currently certified Administrator and provides written notice to the department of the designation.

(c) Course Fees and Schedules.

(1) An Offender Education Program/Provider must set definite and reasonable course fees. Course fees may not be assessed on a class-by-class basis.

(2) An Offender Education Program must maintain, and make available upon request, written course schedules that include the dates, times, and locations where courses will be held, and the fees charged by the Program.

(3) An Offender Education Program must schedule at least one course each quarter.

(d) Program Records and Audits.

(1) An Offender Education Program/Provider, and its Administrator and Instructors, must maintain, for at least three years, documentation necessary to demonstrate compliance with all applicable requirements of this chapter. This requirement applies to records and documentation created on or after the effective date of this subsection.

(2) The Offender Education Program/Provider and its personnel must allow the department access at any reasonable time, including while an Offender Education class is being taught, to any of its Program sites for auditing and monitoring purposes.

(3) In addition, unless otherwise prohibited by law, the Program/Provider, its Administrator, and Instructors must make available or provide to the department upon request at any reasonable time, any of its documents or records, including all records of any Instructor or Administrator, for audit and monitoring purposes.

(4) The Offender Education Program/Provider, its Administrator, and its Instructors must cooperate with department staff and allow department staff to interview Program/Provider personnel and participants.

(e) Change in Program Information. An Offender Education Program/Provider must notify the department in writing within 30 days of any change in the Provider's headquarters or branch site address(es), telephone number, e-mail address, website address, or change in the Administrator or Instructor(s).

(f) Providing Information to Course Participants. The Offender Education Program/Provider must provide to each course participant:

(1) the Program/Provider certification number;

(2) the Instructor certification number; and

(3) information regarding how to file a complaint with the department.

(g) Referrals.

(1) If an Offender Education Program or Instructor is in a position to or does provide Offender Education referral information to an individual who is required to attend an Offender Education course, the Offender Education Program or Instructor providing the referral information:

(A) must provide the department's phone number and web address;

(B) must advise the individual concerning the individual's choice to attend any Offender Education Program certified by the department; and

(C) may not require or otherwise attempt to influence an individual to choose a particular Offender Education Program.

(2) This subsection does not prevent a Program or Instructor from providing information specific to the Program or to the Instructor's own Program or course when a prospective participant is specifically requesting information about that particular Program or the Instructor's own Program or course.

(h) Complaints.

(1) An Offender Education Program/Provider must establish procedures to resolve participant complaints.

(2) An Offender Education Program/Provider, Administrator, and course Instructor must provide participants with a notice or documentation that contains the name, current mailing address, current telephone number, and website address of the department and a statement that any complaints against the Program or any of its personnel may be directed to the department.

(3) Upon verbal or written request from the department, an Offender Education Program, Administrator, Instructor, or any person associated with the Program, must cooperate with the department and furnish requested information concerning any department investigation of a complaint.

§90.51.Recordkeeping Regarding Course Participants.

(a) All Offender Education Programs/Providers must collect and maintain the following required information on each course participant:

(1) name;

(2) street address, city, and zip code;

(3) e-mail address;

(4) date of birth;

(5) gender;

(6) driver's license number (if any);

(7) grade in school or educational level achieved;

(8) present employment;

(9) date of enrollment;

(10) date of course completion;

(11) dates and attendance record for each class session of the course completed;

(12) certificate of completion number; and

(13) criminal case cause number.

(b) In addition to the requirements in subsection (a), Drug Offender Education Programs and DWI Education Programs must collect and maintain the following required information on each course participant:

(1) individual pre- and post-course test scores;

(2) average pre- and post-course test scores of course participants;

(3) aggregate percent of knowledge increase between pre- and post-course test scores;

(4) each course participant's screening instrument;

(5) each course participant's screening instrument indicator code/score; and

(6) any referral recommendations made to a course participant.

(c) In addition to the requirements in subsection (a), DWI Intervention Programs must collect and maintain the following required information on each course participant:

(1) participants' blood alcohol concentration at time of arrest (if known);

(2) the number of prior alcohol/drug-related arrests;

(3) documentation that the agreement form, Alcoholics Anonymous attendance, family/significant other attendance, sessions with individual participants, and exit interview requirements were completed as outlined in the Texas DWI Intervention Administrator/Instructor Program Manual;

(4) each course participant's screening instrument;

(5) each course participant's screening instrument indicator code/score; and

(6) any referral recommendations made to a course participant.

(d) In addition to the requirements in subsection (a), Alcohol Education Program for Minors must collect and maintain the following required information on each course participant:

(1) the name of the referring judge;

(2) individual pre- and post-course test scores;

(3) average pre- and post-course test scores of course participants; and

(4) aggregate percent of knowledge increase between pre- and post-course test scores.

(e) An Offender Education Program must retain each Course Roster and a copy of each issued Certificate of Completion for at least three years from the date of course completion.

(f) All other Course Records, as defined under §90.10 and specified in this section, must be retained for a minimum of one year from the date of course completion.

(g) The records in this section must be maintained at the Program's/Provider's headquarters.

§90.52.Annual Reports.

(a) An Offender Education Program/Provider must file an annual report for the time period beginning September 1 of each year and ending August 31 of the following year.

(b) An Offender Education Program/Provider must submit the annual report form to the department by September 15 of each year.

(c) An Offender Education Program must submit the following items on the department-prescribed annual report form:

(1) total number of participants registered for each Program course during the annual reporting period;

(2) total number of participants successfully completing each Program course during the annual reporting period;

(3) total number of courses conducted during the annual reporting period;

(4) names of all certified Instructors employed by the Offender Education Program and number of courses conducted by each Instructor during the annual reporting period;

(5) driver's license numbers of all participants, or, in the absence of a driver's license number, the date of birth of each participant completing the course;

(6) average percent of knowledge increase across all courses conducted during the annual reporting period from pre-course tests to post-course tests administered (not required for DWI Intervention Programs); and

(7) percent of total participants during the annual reporting period indicating significant substance abuse problems, based upon the numerical score on the approved screening instrument required to be administered (not required for Alcohol Education Program for Minors).

§90.53.Confidentiality.

All Offender Education Programs shall abide by and obtain any consent to disclosure required by applicable Federal and State laws regarding confidentiality of patient/client records including, as applicable and without limitation:

(1) 42 United States Code §290dd-2, Confidentiality of Records;

(2) 42 Code of Federal Regulations, Part 2, Confidentiality of Alcohol and Drug Abuse Patient Records; and

(3) Health and Safety Code, Chapter 611, Mental Health Records.

§90.54.Discrimination Prohibited.

Offender Education Programs shall be conducted without discrimination based upon the gender, race, religion, age, national or ethnic origin, or disability of the participant.

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 April 10, 2017.

TRD-201701486

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER F. FEES

16 TAC §90.80

The new rule is proposed under Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program), which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). No other statutes, articles, or codes are affected by the proposal.

§90.80.Fees.

(a) All fees paid to the department and any charges for program-related materials are non-refundable.

(b) Fees will be assessed in accordance with the following fee schedule:

(1) Offender Education Program/Provider Certification Fees (paid to department):

(A) Initial application fee, including a new Program in a non-adjacent county to the headquarters--$300 per Program;

(B) Renewal application fee--$225 per Program;

(2) Branch Site Fees (paid to department):

(A) Initial application fee for a branch site (same or adjacent county to the headquarters)--$5 per branch site;

(B) Branch site renewal application fee--$5 per branch site;

(3) Moving/Change of Headquarters Fees (paid to department):

(A) Moving headquarters to a location outside of the county--$300;

(B) Moving headquarters to a location in the same county--$25;

(4) Instructor Certification Fees:

(A) initial application fee--$0;

(B) renewal application fee--$0;

(5) Instructor Training Course Fees (paid to third party contractor)--$425 per course;

(6) Continuing Education Seminar Fees (paid to third party contractor)--$100 per seminar; and

(7) Fees for Program Course Materials must be paid to the third party contractor.

(c) A duplicate/replacement fee for a certification/certificate issued under this chapter is $25.

(d) A dishonored/returned check or payment fee is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

(e) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

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 April 10, 2017.

TRD-201701487

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER G. AUDITS AND ENFORCEMENT

16 TAC §§90.90 - 90.94

The new rules are proposed under Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program), which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). No other statutes, articles, or codes are affected by the proposal.

§90.90.Monitoring and Audits of Programs.

(a) The department may monitor and perform audits of an Offender Education Program and its personnel. The department may request access at any reasonable time, including while an Offender Education class is being taught, to any of its Program sites for auditing and monitoring purposes.

(b) The department may request at any reasonable time and must be given access to, unless otherwise prohibited by law, any documents or records of a Program, its Administrator, and its Instructors for auditing and monitoring purposes.

(c) The department may interview an Offender Education Program/Provider, its Administrator, its personnel, its Instructors, and its participants.

§90.91.Complaints.

Upon verbal or written request from the department, an Offender Education Program, Administrator, Instructor, or any person associated with the Program, must cooperate with the department and furnish requested information concerning any department investigation of a complaint.

§90.92.Administrative Penalties and Sanctions.

If a person or entity violates any provision of Texas Occupations Code Chapter 51, the statutory provisions identified in §90.1, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 51, the statutory provisions identified in §90.1, and any associated rules.

§90.93.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapter 51, the statutory provisions identified in §90.1, and any associated rules may be used to enforce the statutory provisions identified in §90.1 and this chapter.

§90.94.Additional Conduct Subject to Disciplinary Actions.

(a) The department may deny, refuse to renew, or revoke the application or certification of an Offender Education Program or of an Instructor if the applicant for Program or Instructor certification, or the Program or Instructor certification holder, or a Program owner, Instructor, Administrator, or staff member:

(1) fails or has failed to comply with applicable requirements under this chapter or any other applicable statute or department rule;

(2) falsifies, submits or maintains, or has falsified, submitted, or maintained any substantially false, inaccurate, or incomplete documentation required under this chapter or related to the applicable Offender Education Program. This includes submission of any false or misleading statements in an application or other statement or correspondence to the department;

(3) engages or has engaged in conduct or promotes, permits, or has promoted or permitted one or more participants to engage in conduct inconsistent with behaviors and principles taught or advocated under the curriculum prescribed under §90.40;

(4) attends or has attended any Instructor training, instructs or is present at any class in an Offender Education Program, or performs duties related to an Offender Education Program while under the influence or impaired by alcohol or controlled substances, or provides one or more course participants with, or permits or encourages one or more course participants to use, any alcohol or controlled substance;

(5) engages or has engaged in conduct toward another that is violent or that constitutes abuse, neglect, or exploitation under applicable law; or

(6) engages or has engaged in conduct with respect to a participant that is inequitable, discriminatory, degrading, disrespectful, retaliatory, of a romantic or sexual nature, or which otherwise is or may be harmful to the health, safety, or welfare of a participant, to participants generally, or to the public.

(b) If a Program/Provider or Instructor whose certification has been denied, initially or at renewal, or revoked thereafter reapplies, the Program/Provider or Instructor shall be required, with the application, to show that the facts and circumstances that led to revocation, denial, or a refusal to renew no longer serve as a basis for denial.

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 April 10, 2017.

TRD-201701488

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


CHAPTER 117. MASSAGE THERAPY

The Texas Department of Licensing and Regulation (Department) proposes new rules at 16 Texas Administrative Code (TAC), Chapter 117, Subchapter A, §117.1 and §117.2; Subchapter C, §§117.20 - 117.24; Subchapter D, §§117.30 - 117.34; Subchapter E, §117.40 and §117.41; Subchapter F, §§117.50 - 117.68; Subchapter G, §117.80 - 117.85; Subchapter H, §§117.90 - 117.93; Subchapter I, §117.100; Subchapter J, §§117.110 - 117.112, regarding the Massage Therapy program.

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the Department of State Health Services (DSHS) to the Texas Commission of Licensing and Regulation (Commission) and the Department. The Commission and Department completed the Phase 1 transition of seven programs on October 3, 2016.

Under Phase 2, the following six programs are being transferred from DSHS to the Commission and the Department: (1) Laser Hair Removal, Texas Health and Safety Code, Chapter 401, §§401.501 - 401.522; (2) Massage Therapy, Texas Occupations Code, Chapter 455; (3) Code Enforcement Officers, Texas Occupations Code, Chapter 1952; (4) Sanitarians, Texas Occupations Code, Chapter 1953; (5) Mold Assessors and Remediators, Texas Occupations Code, Chapter 1958; and (6) Offender Education Programs, Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). The statutory amendments transferring regulation of these six Phase 2 programs from DSHS to the Commission and the Department will take effect on September 1, 2017.

The new rules are proposed to enable the Commission and the Department to regulate the six Phase 2 programs listed above. The proposed new rules provide for the Department to perform the various functions, including licensing, compliance, and enforcement, necessary to regulate these transferred programs. The anticipated effective date of the proposed rules is November 1, 2017. The effective date will coincide with the completion of the transfer of the programs to the Commission and the Department.

The proposed new rules under 16 TAC Chapter 117 are necessary to implement S.B. 202 and to regulate the Massage Therapy program under the authority of the Commission and the Department. These proposed new rules are separate from and are not to be confused with the DSHS rules located at 25 TAC Chapter 140, Subchapter H, regarding the Massage Therapists program, which are still in effect.

The Department held public summits on March 6, 2017, in Arlington, Texas; March 8, 2017, in Houston, Texas; and March 10, 2017, in Austin, Texas, to get initial feedback on a draft of the proposed rules prior to publication of the proposed rules in the Texas Register.

The proposed new Subchapter A provides the General Provisions for the proposed new rules.

The proposed new §117.1 provides the statutory authority for the Commission and the Department to regulate the massage therapy program.

The proposed new §117.2 creates the definitions to be used in the massage therapy program.

The proposed new Subchapter C establishes licensed massage therapist requirements.

The proposed new §117.20 creates the general requirements and applications for the massage therapist license.

The proposed new §117.21 details the reciprocity requirements for the massage therapist license.

The proposed new §117.22 explains the examination required for the massage therapist license.

The proposed new §117.23 explains the issuance of a massage therapist license.

The proposed new §117.24 establishes the massage therapist term and renewal requirements.

The proposed new Subchapter D creates the continuing education requirements.

The proposed new §117.30 establishes the continuing education hours for massage therapist.

The proposed new §117.31 details the approved continuing education courses and providers for massage therapist.

The proposed new §117.32 explains activities that are unacceptable for continuing education for massage therapist.

The proposed new §117.33 establishes the record and audit process for massage therapist continuing education.

The proposed new §117.34 explains the requirements and necessary application for continuing education providers to be approved by the Department.

The proposed new Subchapter E creates licensed massage therapy instructors.

The proposed new §117.40 details the general and application requirements for massage therapy instructors.

The proposed new §117.41 establishes the massage therapy instructor term and renewal requirements.

The proposed new Subchapter F provides for licensed massage schools.

The proposed new §117.50 details the general and application requirements for a massage school license.

The proposed new §117.51 creates massage school location requirements.

The proposed new §117.52 explains change of massage school ownership.

The proposed new §117.53 establishes massage school equipment and facility requirements.

The proposed new §117.54 establishes massage school sanitation requirements.

The proposed new §117.55 provides for massage school inspections.

The proposed new §117.56 explains necessary documents and requirements to establish massage school financial stability.

The proposed new §117.57 establishes massage school license renewal requirements.

The proposed new §117.58 provides for massage school administrative personnel.

The proposed new §117.59 creates the massage school curriculum outline and internship.

The proposed new §117.60 details massage school advanced course work.

The proposed new §117.61 establishes massage school admission requirements.

The proposed new §117.62 explains massage school enrollment procedures.

The proposed new §117.63 establishes massage school tuition and fees.

The proposed new §117.64 provides for massage school transcripts and records.

The proposed new §117.65 creates a massage school conduct and grievance policy.

The proposed new §117.66 establishes massage school cancellation, refund and school closure policies.

The proposed new §117.67 details massage school minimum progress standards.

The proposed new §117.68 provides for a massage school attendance policy.

The proposed new Subchapter G creates licensed massage establishments.

The proposed new §117.80 details massage establishment application procedures and licensure.

The proposed new §117.81 establishes massage establishment renewal requirements.

The proposed new §117.82 explains general requirements for massage establishments.

The proposed new §117.83 details sanitation requirements for massage establishments.

The proposed new §117.84 provides exemptions to massage establishments.

The proposed new §117.85 explains massage establishment change of ownership or location requirements.

The proposed new Subchapter H explains the responsibilities of licensees and code of ethics to be used in the massage therapy program.

The proposed new §117.90 creates general ethical requirements.

The proposed new §117.91 details the consultation document.

The proposed new §117.92 prohibits sexual misconduct.

The proposed new §117.93 explains advertising requirements.

The proposed new Subchapter I creates fees.

The proposed new §117.100 details all applicable fees in the massage therapy program.

The proposed new Subchapter J provides enforcement provisions.

The proposed new §117.110 requires massage therapy program licensees to cooperate with the Department regarding complaints.

The proposed new §117.111 allows for administrative penalties and sanctions.

The proposed new §117.112 provides the authority to enforce this chapter and Texas Occupations Code, Chapter 455.

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed new rules are in effect there will not be any additional estimated costs or reductions in costs to the State or local government as a result of enforcing or administering the rules. However, the proposed rules decrease the initial massage therapist license application fee from $106 to $100 resulting in an estimated loss in revenue to the State of approximately $17,424 per fiscal year for the first five years the rule is in effect. The proposed rules also allow for the Department’s standard program fees to include a dishonored payment device fee of $50; a criminal history evaluation letter fee of $25; and a duplicate license fee of $25. The Department does not anticipate a significant increase of revenue as a result of these fees because they are discretionary based on the needs and actions of licensees. Additionally, there is no estimated loss or increase in revenue to local government as a result of enforcing or administer the rules.

Mr. Francis also has determined that for each year of the first five-year period the proposed new rules are in effect, the public benefit will include that the rules implement the statutory requirements under the authority of the Commission and the Department and provide details that are not found in the enabling acts. The rules also have been formatted and organized to assist the public, the regulated community, and the Department in easily finding specific rules. In addition, the new rules are streamlined so as not to duplicate provisions that are already located in the statutes and rules of the Commission and Department in Texas Occupations Code, Chapter 51 and in 16 TAC Chapter 60, which apply to all programs regulated by the Commission and the Department. The proposed new rules also provide for the effective and efficient regulation of massage therapists, massage therapy instructors, massage establishments, massage schools, and massage therapy continuing education providers, which enhances the public health, safety, and welfare.

There will be no adverse effect on small or micro-businesses as a result of the proposed new rules. There are no anticipated economic costs to persons who are required to comply with the proposed new rules. The above mentioned standard program fees are discretionary and will not constitute a burden considering a minimal number of licensees might need to pay them based on the needs and actions of the individuals and licensees.

Since the agency has determined that the proposed new rules will have no adverse economic effect on small or micro-businesses, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, under Texas Government Code §2006.002, is not required.

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032; or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §117.1, §117.2

The new rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.1.Authority.

This chapter is promulgated under the authority of the Texas Occupations Code, Chapter 51 and 455.

§117.2.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Texas Occupations Code, Chapter 455, relating to the regulation of massage therapists, massage therapy instructors, massage schools, and massage establishments.

(2) Anatomy--The study of the structure of the human body including the following areas: bones, joints and muscles, the skin, blood and blood vessels, cells, tissues and membranes, the heart, the brain, spinal cord and nerves, the lymphatic system, the digestive system, the respiratory system, the urinary system, the reproductive system, glands and hormones.

(3) Business practices and professional ethics--The study of standard bookkeeping and accounting practices, office practices, and advertising, and ethical guidelines for massage therapists established by law or the department.

(4) Client--An individual or patron seeking or receiving massage therapy services.

(5) Commission--The Texas Commission on Licensing and Regulation.

(6) Compensation--Any and all forms of payment as remuneration for the provision of massage therapy or other massage therapy services, including but not limited to, fees, tips, memberships, goods, services, barter, or any other exchange or any value made to or on behalf of a licensee, an unlicensed person, or an unlicensed business. Compensation includes discounted, reduced, or waived student fees for tuition, books, supplies, or other educational expenses.

(7) Department--The Texas Department of Licensing and Regulation.

(8) Executive Director --The executive director of the department.

(9) Health and hygiene--The study of recognized methods of sanitation and cleanliness including prophylaxis or disease prevention as applied to massage therapy services and current knowledge of elements of healthy life styles.

(10) Hydrotherapy--The use of generally accepted methods of external application of water for its mechanical, thermal, or chemical effect.

(11) Instructor--A person employed at a licensed massage school who instructs one or more students in any section of the course of instruction, other than massage therapy techniques, manipulation of soft tissue, or the internship.

(12) Kinesiology--The study of the anatomy, physiology, and mechanics of movement of the human body.

(13) Licensee--A person or entity licensed under the Act as a massage therapist, massage school, massage therapy instructor, or massage establishment.

(14) Massage school--An entity that:

(A) teaches at a minimum the course of instruction required for a massage therapist license; and

(B) has at least two instructors.

(15) Massage therapist--A person who practices or administers massage therapy or other massage services to a client for compensation. The term includes a licensed massage therapist, therapeutic massage practitioner, massage technician, masseur, masseuse, myotherapist, body massager, body rubber, or any derivation of those titles.

(16) Massage therapy--The manipulation of soft tissue by hand or through a mechanical or electrical apparatus for the purpose of body massage. The term includes effleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve strokes, and Swedish gymnastics. Massage therapy may include the use of oil, lubricant, salt glows, heat lamps, hot and cold packs, or tub, shower, jacuzzi, sauna, steam or cabinet baths. Equivalent terms for massage therapy are massage, therapeutic massage, massage technology, myo-therapy, body massage, body rub, or any derivation of those terms. Massage therapy is a health care service when the massage is for therapeutic purposes. The terms "therapy" and "therapeutic" do not include diagnosis, the treatment of illness or disease, or any service or procedure for which a license to practice medicine, chiropractic, physical therapy, or podiatry is required by law. Massage therapy does not constitute the practice of chiropractic.

(17) Massage therapy educational program--The minimum 500 hour supervised course of instruction described in the Act, §455.156, required for licensure and provided by a licensed massage school.

(18) Massage therapy establishment--A place of business that advertises or offers massage therapy or other massage services unless specifically exempted by the Act. The term includes a place of business that advertises or offers any service described by a derivation of the terms "massage therapy" or "other massage services" as defined by the Act.

(19) Massage therapy instructor--A licensed massage therapist who provides to one or more students instruction approved by the department in massage therapy or manipulation of soft tissue and who holds a license issued by the department as a massage therapy instructor.

(20) Owner--An owner is, in the case of a massage school or establishment, an individual, a partnership and any partners, a corporation, or any other legal business entity.

(21) Pathology--The scientific study of the nature of disease and its causes, processes, development, and consequences.

(22) Physiology--The study of the normal vital processes of the human body including the processes of cells, tissues, and organs including the contractibility of muscle tissue; coordination through the nervous system; digestion; circulatory; reproduction; and secretions.

(23) State approved educational institution--An institution which is approved by the Texas Education Agency or which is an institution of higher education as defined in the Texas Codes Annotated, Texas Education Code, Chapter 61 or a higher education institution approved by a similar agency in another state.

(24) Swedish gymnastics--Passive and active joint movements, nonspecific stretches, passive and active exercise, or any combination of these.

(25) Swedish massage therapy techniques--The manipulation of soft tissue utilizing effleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve stroke, and Swedish gymnastics.

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 April 6, 2017.

TRD-201701458

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER C. LICENSED MASSAGE THERAPIST

16 TAC §§117.20 - 117.24

The new rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.20.Massage Therapist License--General Requirements and Application.

(a) To be eligible for a Massage Therapist license an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required under §117.100;

(3) be at least 18 years of age;

(4) submit a transcript(s) of all relevant course work, acceptable to the department;

(5) provide proof of successfully passing the required exam;

(6) provide proof of successfully passing the jurisprudence exam;

(7) successfully pass a criminal history background check performed by the department; and

(8) satisfactorily complete massage therapy studies in a minimum 500 hour department approved course at a licensed massage school in which includes at least:

(A) 200 hours of massage therapy techniques and theory and the practice of manipulation of soft tissue, with at least 125 hours of Swedish massage therapy techniques;

(B) 50 hours of anatomy;

(C) 25 hours of physiology;

(D) 50 hours of kinesiology;

(E) 40 hours of pathology;

(F) 20 hours of hydrotherapy;

(G) 45 hours of massage therapy laws and rules, business practices and professional ethics;

(H) 20 hours of health, hygiene, first aid, universal precautions, and cardiopulmonary resuscitation (CPR); and

(I) 50 hour internship program.

(b) Unless otherwise indicated, an applicant for licensure as a massage therapist must submit all required information and documentation of credentials on department-approved forms.

(c) If the application is incomplete, the department will send a notice listing any additional materials required to complete the application.

(d) In the event that a deficiency is present in course work, the applicant may have up to one year to complete additional course work acceptable to the department; otherwise, the application may be voided.

§117.21.Massage Therapist License--Reciprocity.

(a) An applicant from another state must provide documentation that licensure in another state was obtained by standards substantially equivalent to those of Texas.

(b) An applicant from another territory or foreign country must provide documents verified by the department or a certified credentialing agency confirming that licensure in the territory or foreign country was obtained by standards substantially equivalent to those of Texas.

(c) Degrees, certificates, diplomas, and course work received at other institutions, American or foreign, shall be accepted only if such institution is approved by an education agency in that state or country and the curriculum, the accrediting/credentialing body of that state or country, or the course of studies meets the criteria set out by the Act and this subchapter.

(d) Unless otherwise indicated, an applicant for licensure as a massage therapist must submit all required information and documentation of credentials on department-approved forms as prescribed under §117.20.

§117.22.Massage Therapist License--Examination Requirements.

(a) Unless otherwise indicated, all applicants must:

(1) pass a massage therapy examination approved by the department before submitting an application for licensure; and

(2) pass the department's jurisprudence examination before a license will be issued.

(b) Examinations approved by the department must be broadly recognized for licensure purposes by other states that regulate massage therapists.

(c) Examination results must reflect that the applicant passed the examinations within two years of the application for licensure unless the applicant is currently licensed in another state or jurisdiction and is applying under §117.20.

(d) A license will not be issued until the department receives acceptable confirmation of passing examination scores.

§117.23.Massage Therapist License--Issuance of License.

(a) Licenses and identification cards issued by the department remain the property of the department, must not be altered in any way, and must be surrendered to the department on demand.

(b) A license must be displayed in an appropriate and public manner at the business location of the licensed business, or in the primary office or place of employment of the licensed individual. In the absence of a primary office or place of employment, the licensed individual shall carry a current identification card.

(c) The department will replace a lost, damaged, or destroyed license or identification card upon written request from a licensee and payment of the replacement fee prescribed under §117.100.

§117.24.Massage Therapist License Term; Renewals.

(a) A massage therapist license issued under this chapter is valid for two years.

(b) To renew a massage therapist license, a licensee must:

(1) submit a completed renewal application on a department-approved form;

(2) complete all applicable continuing education requirements; and

(3) submit all applicable fees as prescribed under §117.100.

(c) On receipt of a renewal application of a license issued under this chapter, the department shall conduct a criminal background check as authorized under §455.1525 of the Occupations Code.

(d) Each licensee is responsible for renewing the license before the expiration date and shall not be excused from paying late renewal fees.

(e) A person whose license has expired may not engage in the activities of a massage therapist and may not hold himself or herself out as a massage therapist, imply that he or she has the title of " licensed massage therapist" or "massage therapist", or use "RMT", "LMT", or "MT" or any facsimile of those titles in any manner.

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 April 6, 2017.

TRD-201701459

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER D. CONTINUING EDUCATION

16 TAC §§117.30 - 117.34

The new rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.30.Massage Therapist Continuing Education--Hours.

(a) Massage therapist must successfully complete at least twelve hours of approved continuing education per license term.

(b) One hour of credit will be awarded for each clock hour of attendance at acceptable continuing education activities, except as follows:

(1) one semester hour of academic credit will constitute fifteen clock hours of continuing education;

(2) one quarter hour of academic credit will constitute ten clock hours of continuing education; and

(3) 0.1 continuing education unit will constitute one clock hour of continuing education.

(c) A clock hour is equal to 50 minutes.

§117.31.Massage Therapist -- Approved Continuing Education Courses and Providers.

(a) Acceptable continuing education includes attendance at and completion of department approved or recognized, institutes, seminars, workshops, state or national conferences, advanced course work, or college and university academic courses that are:

(1) directly related to the theory or clinical application of theory pertaining to the practice of massage therapy and the manipulation of soft tissue, massage therapy laws and rules, business practices, professional ethics, anatomy, physiology, hydrotherapy, kinesiology, pathology, or health and hygiene; or

(2) first aid and/or CPR, not to exceed six hours total each renewal period; or

(3) advanced massage therapy or bodywork techniques acceptable to the department; and

(4) designed to increase and enhance professional knowledge, skills, or competence in the practice of massage therapy.

(b) Continuing education approved or recognized by the department must be developed and presented by qualified persons.

(1) Massage therapy techniques and courses involving the manipulation of soft tissue must be taught or presented by a licensed massage therapy instructor. Advanced massage therapy or bodywork techniques must be taught or presented by persons with licensure, registration, or education in the technique being presented.

(2) Courses, other than techniques, may be taught or presented by persons with licensure, registration, education or practical experience in the subject being presented. Instructors teaching CPR or First Aid must be certified as CPR instructors or First Aid instructors by:

(A) the American Heart Association;

(B) the American Red Cross;

(C) the National Safety Council; or

(D) another provider with curriculum that is in compliance with nationally accepted guidelines established by the above referenced organizations.

(3) Out-of-state instructors or presenters offering continuing education in Texas on massage therapy techniques or involving the manipulation of soft tissue must:

(A) be in compliance with any licensure, registration or certification requirements for massage therapists and massage therapy instructors in the instructor or presenter's home state;

(B) be licensed to practice medicine, occupational therapy, chiropractic, athletic training, physical therapy, or nursing; or

(C) provide documentation of education or practical experience specific to the continuing education being offered if the instructor or presenter's home state does not have licensure, registration or certification requirements for massage therapists and massage therapy instructors.

(c) Continuing education which otherwise meets the standards of this section but is offered or presented online or by correspondence is acceptable only if the subject matter is not massage therapy techniques or manipulation of soft tissue.

(d) The department may approve out-of-state continuing education providers and programs. Continuing education completed out-of-state may be accepted by the department if it is approved by a national board such as the National Certification Board for Therapeutic Massage and Bodywork.

(e) Additional information regarding the continuing education may be required for departmental review.

§117.32.Massage Therapist Continuing Education--Unacceptable Activities.

The department shall not give continuing education credit for:

(1) education incidental to the regular professional activities of a massage therapist, such as learning occurring from experience or research;

(2) professional organizational activity, such as serving on committees or councils or as an officer in a professional organization;

(3) college academic courses which are audited or not taken for credit;

(4) independent study, except online or correspondence courses in accordance with the acceptable continuing education requirements of this subchapter; or

(5) any experience which does not comply with the approved continuing education in §117.31.

§117.33.Massage Therapist Continuing Education--Records and Audits.

(a) The department will monitor a licensee's compliance with continuing education requirements by the use of a random audit system. Supporting documentation of participation in continuing education activities need not be submitted unless an audit notice is received informing the licensee that he or she has been selected for a document audit.

(b) Continuing education supporting documentation includes:

(1) certificates of attendance or completion;

(2) transcripts of academic work or approved course work; or

(3) any other documentation acceptable to the department.

(c) The audit process shall be as follows:

(1) The department shall select for audit a random sample of license holders for each renewal month. License holders will be notified of the continuing education audit when they receive their renewal documentation.

(2) If selected for an audit, the licensee shall submit copies of certificates, transcripts or other documentation satisfactory to the department, verifying the licensee's attendance, participation and completion of the continuing education. All documentation must be provided at the time of renewal.

(3) Failure to timely furnish this information or providing false information during the audit process or the renewal process are grounds for disciplinary action against the license holder.

(4) A licensee who is selected for continuing education audit may apply for renewal through the online renewal process. However, the license will not be considered renewed until required continuing education documents are approved by the department.

(5) Licenses will not be renewed until continuing education requirements have been met.

(d) Licensees are responsible for maintaining continuing education records for a period of five (5) years.

§117.34.Approved Continuing Education Providers--Requirements and Application.

(a) Continuing education providers may apply for provider approval on department-approved forms and pay the required fee prescribed under §117.100. Approved applications are effective for two years from the date of approval.

(b) Approved providers of continuing education must comply with all education requirements set out in this subchapter.

(c) Approved providers of continuing education must maintain attendance records of all continuing education activities for a period of five (5) years.

(d) Approved providers shall issue a certificate of attendance to each participant in a program. The certificate of attendance shall contain:

(1) the name of the approved provider and approval number;

(2) the name of the participant;

(3) the title of the program;

(4) the number of credit hours given;

(5) the subject(s) included in the program;

(6) the date and place of the program; and

(7) the signature of the approved provider.

(e) Continuing education providers must renew the approval before the expiration date by submitting a department-approved application and paying the required fee prescribed under §117.100. Renewed approvals will be issued for a two-year period as determined by the department.

(f) The department may audit approved providers for compliance with this section.

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 April 6, 2017.

TRD-201701460

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER E. LICENSED MASSAGE THERAPY INSTRUCTORS

16 TAC §117.40, §117.41

The new rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.40.Massage Therapy Instructor--General Requirements and Application.

(a) A licensed massage therapy instructor shall instruct the 125 hours of Swedish massage therapy, any other instruction in massage techniques or manipulation of soft tissue, and the internship portion of the required course of instruction.

(b) To qualify for massage therapy instructor license, a person shall:

(1) be a licensed massage therapist;

(2) have a high school diploma, a general equivalence diploma (GED) or a transcript from an accredited college or university showing successful completion of at least twelve (12) semester hours;

(3) submit a statement of assurance that the licensee has been engaged in the practice of massage therapy for at least one year and has conducted 500 hours of hands-on experience (does not include internship hours); and

(4) complete a 30-hour course on teaching adult learners. Courses attended may include an instructional certification program, a college level course in teaching adult learners, a continuing education course in teaching adult learners, or an advanced program approved by the department in teaching the course of instruction;

(5) submit a completed application on a department-approved form; and

(6) pay the required feed under §117.100.

(c) Persons qualified to instruct courses other than massage therapy technique or manipulation of soft tissue courses are not required to hold a massage therapy instructor license. These persons must hold:

(1) a baccalaureate or higher degree from an accredited college or university that includes:

(A) satisfactory completion of nine (9) semester hours or twelve (12) quarter hours in subjects related to the subject area to be taught; or

(B) a minimum of one year of practical experience within the last ten (10) years in the subject area to be taught; or

(2) an associate degree from an accredited college, university, or recognized post-secondary institution and must have:

(A) a minimum of one year of practical experience within the last ten years in the subject area to be taught and the associate degree must include satisfactory completion of nine (9) semester hours or twelve (12) quarter credit hours in subjects related to the subject area to be taught; or

(B) a minimum of two (2) years of practical experience within the last ten (10) years in the subject area to be taught; or

(3) a high school diploma, GED, or proof of satisfactory completion of relevant subject(s) from a recognized post-secondary institution and practical experience of a minimum of two years within the last ten years in the subject area to be taught.

(d) Instructors teaching CPR or First Aid must be certified as CPR instructors or First Aid instructors by:

(1) the American Heart Association;

(2) the American Red Cross;

(3) the National Safety Council; or

(4) another provider with curriculum that is in compliance with nationally accepted guidelines established by the above referenced organizations.

§117.41.Massage Therapy Instructor License Term; Renewals.

(a) A massage therapy instructor license issued under this chapter is valid for two years.

(b) To renew a massage therapy instructor license, a licensee must:

(1) submit a completed renewal application on a department-approved form; and

(2) submit all applicable fees as prescribed under §117.100.

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 April 6, 2017.

TRD-201701461

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER F. LICENSED MASSAGE SCHOOLS

16 TAC §§117.50 - 117.68

The new rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.50.Massage School License--General Requirements and Application.

(a) Unless exempt, an individual or entity who provides at a minimum the course of instruction required for licensure to one or more students constitutes a massage therapy educational program and must obtain a massage school license.

(b) Minimum standards of operation must be maintained by all massage therapy educational programs to ensure educational programs of high quality which will be of benefit to the student, the school, and the public.

(c) Each applicant for a massage school must submit:

(1) a completed application on a department-approved form;

(2) supporting documents that shall include:

(A) lease agreement;

(B) detailed floor plan; and

(C) inventory;

(3) the financial stability statements or documents as prescribed under §117.56; and

(4) the required fee under §117.100.

(d) The department shall conduct an inspection of a massage school before an educational program begins operation. No massage school may be operated, instruction given, or student solicited or enrolled at any location which has not been approved by the department.

(e) Each massage school shall maintain each instructional location in accordance with applicable state and local fire codes and regulations.

(f) The massage school license must be displayed in an appropriate and public manner at the location of the educational program.

§117.51.Massage School Locations.

(a) A massage school license shall be issued for each approved instructional location. Instruction shall not be provided at an additional location until the department has issued a license for the additional location.

(b) A massage school shall obtain approval for any additional location(s) where the massage therapy educational program will be offered. All policies and curriculum of the original location apply to an additional location(s).

(c) An application for licensure of an additional location shall include the department-approved application form, fee prescribed under §117.100, and the following documents:

(1) lease agreement;

(2) detailed floor plan; and

(3) inventory.

(d) Each massage school shall maintain each instructional location in accordance with applicable state and local fire code(s) and regulations.

(e) The department may approve a massage therapy educational program to begin operation at an additional location prior to inspection if an inspection of the location has been conducted by the department within the preceding ninety (90) days or if the instruction will be conducted at a public facility, such as a hotel, hospital, university, college, etc.

(f) An application for a change of instructional location of a massage therapy educational program must be filed and approved by the department before the new location is used. Upon approval of a change of instructional location, no course work may be provided at the previous location.

(g) Any refunds due to students under the cancellation and refund policy in §117.66, must be made before the department will approve an additional location or a change of location.

(h) The department may issue an emergency approval for a change of instructional location or additional location on the basis of documented circumstances beyond the massage therapy educational program's control (e.g., fire, flood, breach of lease, etc.).

(1) All required documents must be submitted before the emergency approval will be considered.

(2) All required fees for the change of location or approval of additional location must be submitted to the department within ten (10) days of issuance of the emergency approval unless the new location is only used once.

§117.52.Change of Massage School Ownership.

(a) The license of a massage school may not be sold or transferred to another person or owner.

(b) The department may consider the addition or deletion of any person defined as an owner as a change in ownership.

(c) The massage school must notify the department of the change in ownership at least thirty (30) days before the change in ownership to request that the department, in lieu of a full application, accept a partial application. All fees for initial application will apply.

(d) The department may require submission of a complete application for licensure if:

(1) the department has a reasonable basis to believe the change in ownership of the school may significantly affect the massage therapy educational program's continued ability to meet the criteria for approval; or

(2) the educational program fails to file notice of the change of ownership at least thirty (30) days before the ownership transfer.

(e) The department may require a partial application for licensure if the department reasonably believes the change in ownership will not significantly affect the educational program's continued ability to meet the criteria for approval.

(f) Before a change in ownership of a massage school, the purchaser shall furnish the department with appropriate information to establish financial stability as prescribed under §117.56.

(g) The purchaser of a massage school shall accept responsibility for all refund liabilities of the previous owner.

(h) The department may issue a new license, resulting from a change of ownership, without conducting an inspection if an inspection of the facility has been conducted within the previous year and if the new owner verifies that no changes will be made to existing facilities.

§117.53.Massage School Equipment and Facility Requirements.

(a) Each massage therapy education program shall provide adequate equipment in good working order. The equipment required for instruction shall be determined by the program objective(s). The equipment shall be comparable to that commonly found in the practice of massage therapy.

(b) The equipment and the classroom and laboratory space shall be of sufficient quality and amount to meet the use requirements of the number of current students in class with appropriate seating facilities or work stations, as demanded by the activity patterns of the program.

(c) Enrollment shall not exceed the design characteristics of the student workstations.

(d) The facilities shall meet any state and local ordinances or requirements governing building and safety for the designated use.

(e) If adequate facilities and equipment are available, the following maximum ratios are recommended for the supervised course of instruction, and may be varied at the discretion of the massage therapy educational program to conform to specific conditions:

(1) laboratory--12 tables to 1 instructor and 3 students to 1 table; and

(2) classroom--36 students to 1 instructor.

§117.54.Massage School Sanitation Requirements.

(a) Each instructional location shall be maintained in accordance with applicable state and local sanitary or health codes and regulations.

(b) An instructional location and all fixed equipment shall be:

(1) thoroughly cleaned on a routine basis;

(2) be rendered free from harmful organisms by the application of an accepted bactericidal agent: and

(3) be in good working condition at all times.

(c) Toilet facilities shall be kept clean and sanitary without offensive odor and in working order at all times. Restrooms shall not be used as storage rooms.

(d) Each location shall provide hand washing facilities, including hot and cold running water, located near or adjacent to the toilet room or rooms. Hot air blowers or suitable holders for sanitary towels and dispensers for soap shall be provided, and be adequately supplied at all times.

(e) All trash containers must be emptied daily and kept clean by washing or using plastic liners.

(f) Disposable sheets, towels, or protectors which cannot be disinfected will be disposed of in a waste receptacle immediately after use.

(g) Furniture, equipment, and other fixtures shall be of a washable material and kept clean and in good repair. Electrical equipment shall be kept sanitary and safe at all times.

(h) Clean sheets shall be used on each client.

(i) Soiled sheets are to be discarded. After a sheet has been used once, it shall be deposited in a partially closed receptacle, container, or basket, and shall not be used again until properly laundered and disinfected.

(j) Used towels shall be laundered in chlorinated hot water either by regular commercial laundering or by a non-commercial laundering process.

(k) Oil must be kept in closed containers.

(l) Each instructional site must have adequate ventilation.

§117.55.Massage School Inspections.

(a) There will be at least one unannounced inspection at the primary instructional location of each massage school and at each additional location every year.

(b) Other inspections may be performed, announced or unannounced, at the discretion of the department.

(c) If deficiencies are found, the massage school shall be notified at the end of the inspection of the deficiencies in writing. If deficiencies are not serious or do not raise health and safety concerns, the department shall give the educational program thirty (300 days to correct the deficiencies.

§117.56.Massage School Financial Stability--Documents and Requirements.

(a) Applicants for initial licensure of a massage school shall furnish the department with complete and correct financial statements or documents, sufficient to demonstrate the massage therapy educational program is financially stable and capable of fulfilling its commitments for training.

(1) Applicants must submit the following:

(A) for a school owned by a sole proprietor, a personal balance sheet reviewed by a certified public accountant or public accountant registered with the Texas State Board of Public Accountancy with notes that disclose the amount of payments for the first five years of operation to meet debt agreements as required by generally accepted accounting principles (GAAP); or

(B) for all other ownership structures, a balance sheet consistent with GAAP and generally accepted auditing standards (GAAS) that has been audited and certified by a certified public accountant or public accountant.

(2) Additional documents required for initial licensure of a massage school include:

(A) a list of the expected operation-related expenses for the first three months of operation of the educational program;

(B) a sworn statement signed by the prospective owner affirming the availability of sufficient cash to cover projected expenses, which may include:

(i) total salaries, including withholding, unemployment taxes, and any other related expenses or benefits;

(ii) lease payments for equipment listed by the name of the equipment;

(iii) lease payments for facilities;

(iv) accounting, legal, and other specifically identified professional fees;

(v) an estimate of other expenses such as advertising, travel, textbooks, office supplies, classroom supplies, printing, telephone, utilities, taxes, and sales commissions; and

(C) other evidence deemed appropriate by the department to establish financial stability.

(b) All financial documents must identify the name of the certified public accountant or public accountant preparing the documents and be in accordance with GAAP.

(c) A corporate applicant must file a statement from the Comptroller of Public Accounts that its franchise taxes are current, that the corporation is exempt from payment of the franchise tax, or that it is an out-of-state corporation that is not subject to the franchise tax.

(d) A massage therapy educational program that participates in federal financial aid programs must submit a copy to the department of each audit completed in accordance with reporting requirements of "Government Auditing Standards", the most current edition, issued by the Comptroller General of the United States, at the same time the audit report is submitted to the United States Department of Education.

(e) Financial statements for the most recent fiscal year are required at the time of renewal.

§117.57.Massage School License Renewal.

(a) The license of a massage school is valid for a two-year period beginning on the date of issuance of the initial license.

(b) To renew a massage school license, the licensee must submit:

(1) the renewal fee prescribed under §117.100;

(2) the completed renewal application on a department-approved form;

(3) the complete annual financial statements for the most recently completed fiscal year, demonstrating the massage therapy educational program is financially stable and capable of fulfilling its commitments for instruction as prescribed under §117.56; and

(4) any other information deemed necessary by the department to determine compliance with the Act and this subchapter.

(c) At least thirty (30) days before the license expiration date, the department shall send a notice of the expiration date and the amount of the renewal fee due. The notice will be mailed to the address in the department's records. Each massage school must file a renewal form in a manner prescribed by the department.

(d) The department shall issue a renewal license to a massage school once all renewal requirements are met.

(e) A massage school which operates a massage therapy educational program with an expired license may be subject to disciplinary action. Course hours taught during the time the license is expired will not apply toward the minimum 500-hour course of instruction. For the purpose of establishing the date of late renewal, the postmark date shall be considered the date of mailing.

§117.58.Massage School Administrative Personnel.

(a) Each massage school that operates a massage therapy educational program shall notify the department of the name of the person designated as the director of the educational program. The director is responsible for the educational program, the organization of classes, the maintenance of the physical location and the instructional site(s), the maintenance of proper administrative records and all other procedures related to the administration of the educational program.

(b) The director shall designate an individual to perform all the functions of, and succeed to, the authority of the named director when the director is unavailable or absent from the educational program. The director shall notify the department of the name of the designated individual.

(c) The director or his or her designee must be available during scheduled inspections by the department.

§117.59.Massage School Curriculum Outline and Internship.

(a) Each massage school that operates a massage therapy educational program shall follow the curriculum outline prescribed by the department for the minimum 500-hour supervised course of instruction.

(b) A student must successfully complete the first 250 hours of the supervised course of instruction, including the successful completion of at least 100 hours of massage therapy techniques and theory, before the student is eligible to enter the internship program.

(c) A classroom hour shall include at least 50 clock minutes of actual classroom time and may include a maximum of 10 minutes of break time. Break time for hours which are taught consecutively in one sitting (i.e., in one evening) may be aggregated into a single break time during those consecutive hours, not to exceed 3 hour blocks of instruction, but not at the end of those hours. The 10 minutes of break time may not be accumulated and used in lieu of lunch or dinner breaks.

(d) An instructor must be physically present with the student(s) during the classroom hours, including make-up work.

(e) An internship program must provide a student with a minimum of 40 hours of hands-on massage therapy experience at the location of the student's enrollment. A student enrolled at an additional location shall not be required to travel to another location to complete the internship.

(f) During the hands-on experience, a massage therapy instructor must be available on the premises of the educational program and be immediately available to the student(s).

(g) A massage school shall not require a student to advertise for clients or to obtain clients as part of the internship program. At the student's option and with the educational program's permission, a student may obtain clients for the student's hands-on massage therapy experience.

(h) A massage school must provide all of the minimum 500 hours of the supervised course of instruction at the site where the student enrolled, unless otherwise agreed to by both the student and the massage therapy educational program.

(i) A massage school shall schedule classes and internship clients so that the students will be able to complete the program during the length of time stipulated in the pre-enrollment information. No evening class may be scheduled to extend beyond a reasonable time.

(j) Approved internship programs may not exceed 120 hours. Individuals who have completed the required minimum 500-hour supervised course of instruction, including the 50-hour internship, are eligible for examination and licensure. For the purposes of Texas Occupations Code, §455.053(7), 50 hours is the maximum number of hours a student can accumulate in an internship before the student is required to be licensed unless the student is enrolled in a massage school with an internship of up to 120 hours which has been approved by the department in accordance with subsection (m) of this section. No student may complete more than one internship program.

(k) A massage school shall not allow an unlicensed student to receive any form of compensation for massage therapy or other massage therapy services.

(l) A massage school shall not allow, authorize, or contract with an unlicensed student enrolled in any course or portion of a course offered by the school to provide massage therapy or other massage therapy services to the public for compensation in excess of the internship approved by the department.

(m) A massage school shall request and receive approval to offer a course of instruction designed as a massage therapy educational program which exceeds the 500-hour minimum required for licensure and is otherwise conducted in accordance with all rules pertaining to a massage therapy educational program. A massage school shall not offer a massage therapy educational program which exceeds the 500-hour minimum required for licensure without receiving approval in writing from the department. Such approval shall only be granted by the department if:

(1) the massage school is accredited by an accrediting body approved by the U.S. Department of Education; or

(2) the massage school is approved by the department and meets the following requirements:

(A) the massage school also offers the 500-hour minimum course of instruction required for licensure concurrently and the student is allowed to choose whether or not to enroll in a program that exceeds the minimum number of hours required for licensure;

(B) the massage therapy educational program shall follow the curriculum outline prescribed by the department for the minimum 500 hour supervised course of instruction;

(C) all classroom hours in excess of 450 hours are structured to achieve specific educational goals approved by the department which are directly related to one or more of the competencies included in the curriculum approved by the department;

(D) all internship hours in excess of 50 hours are structured to achieve specific educational goals approved by the department which are directly related to the clinical application of theory pertaining to the practice of massage therapy and the manipulation of soft tissue;

(E) the total number of classroom hours does not exceed 880 hours;

(F) the total number of internship hours does not exceed 120 hours;

(G) the massage school:

(i) provides the student with a department form designed to inform the student that the massage therapy educational program exceeds the minimum number of hours required by law for licensure;

(ii) obtains the student's signature on the form before enrollment;

(iii) provides a copy of the signed form to the student; and

(iv) maintains a copy of the signed form in the student's file; and

(H) Failure to comply with this subchapter shall constitute grounds for the department to deny or withdraw approval of programs or to take disciplinary action against a massage school.

§117.60.Massage School Advanced Course Work.

(a) Advanced course work offered by a massage school which is beyond and not a part of the minimum 500 hour course of instruction must be:

(1) directly related to the theory or clinical application of theory pertaining to the practice of massage therapy and the manipulation of soft tissue, business practices, professional ethics, massage therapy laws and rules, universal precautions, anatomy, physiology, kinesiology, pathology, hydrotherapy, and health and hygiene; and

(2) designed to increase and enhance professional knowledge, skills, or competence in the practice of massage therapy or other massage therapy services.

(b) A massage school shall not offer advanced course work which authorizes the practice of diagnosis, the treatment of illness or disease, or any service or procedure for which a license to practice medicine, chiropractic, physical therapy or podiatry is required by law.

(c) Massage schools shall maintain academic transcripts of advanced course work permanently and shall retain all other student records for at least three years from the last date attended for students of advanced course work. Financial records will be retained as required by federal retention requirements, if applicable.

(d) A massage school may not represent that advanced course work is approved by the department.

(e) Unlicensed students enrolled in advanced coursework may not provide massage therapy or other massage therapy services to the public.

§117.61.Massage School Admission Requirements.

(a) Each massage school shall submit a copy of its admission requirements for the department's approval. Justification shall be submitted for each of the admission requirements.

(b) Evidence shall be maintained in each student's file to show that the admission requirements have been met.

(c) Each massage school must maintain a written record of the previous education and training of a student which meets any portion of the course of instruction required for licensure. The record shall include, if applicable, proof of current CPR and/or First Aid certification from the American Heart Association, American Red Cross, or National Safety Council, or another provider with curriculum that is in compliance with nationally accepted guidelines established by above referenced organizations.

(d) Official transcripts and documentation of course work obtained at colleges, universities, or out of state institutions must be placed in the student's file along with a copy of the department's written evaluation.

(e) A massage school may not require a student to take subjects the student has already successfully completed and which meet the requirements for licensure.

§117.62.Massage School Enrollment Procedures.

(a) Before enrollment, each massage school shall provide each prospective student with the following:

(1) a program outline;

(2) the admission requirements;

(3) a schedule of tuition, fees, and other charges;

(4) a cancellation and refund policy;

(5) the length of time for completion of program, including internship hours;

(6) a class schedule including estimated break and meal times;

(7) the attendance and progress policies, including requirements and fees for make-up hours;

(8) grievance policies;

(9) the pupil-teacher ratio;

(10) the conduct policy;

(11) explanations of the difference between a loan and a grant, if the school participates in a loan or grant program;

(12) a copy of the enrollment agreement;

(13) a notice that clearly states the number of course hours which must be successfully completed before a student can be licensed as a massage therapist under this chapter;

(14) a list of instructors, their qualifications, and the subject area taught by each instructor;

(15) information indicating how a prospective student may obtain copies of the Massage Therapy Act, Texas Occupations Code, Chapter 455 and this chapter; and

(16) a statement that the Act sets out that a person is ineligible for licensure:

(A) if the person has been convicted of, entered a plea of nolo contendere or guilty to, or received deferred adjudication to crimes or offenses involving prostitution or another sexual offense;

(B) until the fifth anniversary of the date of a conviction for a misdemeanor involving moral turpitude or a felony; or

(C) until the fifth anniversary of the date of a conviction of a violation of the Act.

(b) Each prospective student shall be given a reasonable time to review the material in subsection (a) and offered the opportunity to tour the instructional facility and inspect equipment before signing an enrollment agreement. The prospective student may decline the tour.

(c) Each massage school shall use a department-approved acknowledgment form to verify the prospective student's receipt of the information required in subsection (a). A signed copy of the form shall be given to the prospective student and the original shall be maintained in the student's file. The form shall include the following or similar statements:

(1) "I have furnished information disclosing my previous education, training, and work experiences. I understand this will be evaluated and may result in the program length being shortened and the cost reduced.";

(2) "I further realize that complaints may be made to the Texas Department of Licensing and Regulation, Massage Therapy Program, P.O. Box 12157, Austin, Texas 78711, (512) 539-5600, or www.tdlr.texas.gov.";

(3) "I have been offered the opportunity to read the Massage Therapy Act and the rules of the department included in 16 Texas Administrative Code Chapter 117."; and

(4) "I have been made aware that the State of Texas requires only the minimum 500 hour course of instruction for licensure as a massage therapist, and anything beyond that is strictly voluntary."

(d) Each massage therapy educational program shall develop an enrollment agreement which shall be used to enroll each student. The agreement shall include but is not limited to:

(1) the full and correct name and location of the massage school, massage therapy educational program, and the massage school director(s) and owner(s);

(2) the program title, tuition, fees, reasonable estimated cost of books and supplies, any other expenses, total cost of the program, items subject to cost change, method of payment and payment schedule, disclosure statement (if interest is charged on more than three payments), student's right to cancel;

(3) the number of classroom and internship hours included in the program;

(4) the date the program is to begin, the course length and course schedule;

(5) the name and address of the student; and

(6) a statement that the student has received a copy of the information in subsection (a) of this section.

(e) Each student shall be given a copy of his or her executed enrollment agreement and a copy shall be kept in the student's file maintained by the school along with a copy of the acknowledgment form required by subsection (c).

§117.63.Massage School Tuition and Fees.

(a) A massage school shall develop and implement a written policy relating to method(s) of payment available to enrolling students. If student financing is available through any form of arrangement or agreement between the school and a lending institution, the complete terms of the arrangement or agreement must be disclosed in the policy. In addition, if any form of financing is available at or through the school, all charges, the true annual percentage rate and the name(s) and address(es) of the lending institution(s) shall be disclosed in the policy.

(b) A student shall not be held liable for any tuition, fees, or other charges not disclosed in the policy at the time of enrollment.

(c) Scholarships may be offered, provided the terms of the scholarships are published and disclosed in the policy.

(d) Any funds received from, or on behalf of, a student shall be recorded in a format that is current and readily accessible to department representatives. Receipts shall be issued to the student. The funding source and the reason for the charges shall be clearly identified on both the school's record and the receipt.

(e) A massage school may not allow a student to engage in the unlicensed practice of massage in order to pay for tuition, fees, or other charges associated with the student's massage therapy education.

§117.64.Massage School Transcripts and Records.

(a) Massage schools shall make available for inspection by the department, all records relating to the massage therapy educational program and necessary data required for approval and to show compliance with the Act and this subchapter. A copy of the accreditation authorization and the letter of eligibility from the U.S. Department of Education shall be available for review, if applicable.

(b) Each massage school shall maintain student transcripts of academic records permanently. Original or certified copies of transcripts (official transcripts) shall be available to students and any person authorized by the student at a reasonable charge if the student has fulfilled the financial obligation to the school. Transcripts must be made available to students who have satisfied the terms of the enrollment agreement within ten (10) calendar days of the date the terms are satisfied. The transcript of a student shall include the following:

(1) name and license number of massage therapy educational program;

(2) the name of the student;

(3) student's social security number;

(4) student's date of birth;

(5) inclusive dates of attendance;

(6) list of subjects and number of course hours taken by the student at the massage therapy educational program;

(7) dates of courses;

(8) address of student;

(9) signature of authorized representative of the massage therapy educational program; and

(10) pass/fail score.

(c) Each massage therapy educational program shall retain the following student records for at least three years:

(1) enrollment agreements and contracts;

(2) written record and evaluation of previous education and training on a form provided by the department;

(3) official transcript(s) from all previous post-secondary schools attended by the student; and

(4) a master student registration list of any person who signs an enrollment agreement, makes a down payment to attend the class, or attends a class. The list must contain:

(A) the date of the entry;

(B) the name of student;

(C) the address of the student including city, state, and zip code;

(D) the telephone number of the student with area code;

(E) the social security number of the student;

(F) the date of birth of the student; and

(G) the name and dates of supervised education course work.

(d) Financial records must be retained as required by federal retention requirements, if applicable.

§117.65.Massage School Conduct and Grievance Policy.

(a) A massage school shall develop and implement a written policy pertaining to the conduct of students. The policy shall include:

(1) conditions for dismissal; and

(2) conditions for re-entrance of those students dismissed for violating the conduct policy.

(b) Each massage school shall establish a written grievance policy and procedure that is disclosed to all students at the time of enrollment.

(c) The grievance policy and procedure shall:

(1) attempt to resolve disputes between students, including drops and graduates, and the school or instructor;

(2) require that adequate records be maintained of grievances and resolutions;

(3) require that every effort to resolve grievances and complaints is made; and

(4) prohibit a massage school from disciplining or retaliating against a student for filing a complaint with the department.

§117.66.Massage School Cancellation, Refund, and School Closure Policies.

(a) Each massage school shall develop and implement a cancellation and refund policy which must provide a full refund of all monies paid by a student if:

(1) the student cancels the enrollment agreement within 72 hours (until midnight of the third day excluding Saturdays, Sundays, and legal holidays) after the enrollment contract is signed by the prospective student;

(2) the enrollment of the student was procured as the result of any misrepresentation in advertising, in promotional materials of the massage therapy educational program or by the owner, the massage school, or massage therapy instructor; or

(3) the student was not provided ample opportunity to read the information provided in §117.62.

(b) The policy must provide for the refund of the unused portion of tuition, fees, and other charges in the event the student, after expiration of the 72-hour cancellation privilege, fails to enter, withdraws from, or is terminated from the program at any time before completion. The policy must provide that:

(1) refunds for each program will be based on the program time expressed in clock hours;

(2) refunds must be consummated within thirty (30) days after the earliest of:

(A) the effective date of termination if the student is terminated;

(B) the date of receipt of written notice from the student of withdrawal; or

(C) ten (10) instructional days following the first day of the program if the student fails to enter;

(3) if tuition is collected in advance of the first day of the program, and if, after expiration of the 72-hour cancellation privilege, the student does not enter the program, not more than $200 shall be retained by the massage therapy educational program;

(4) if a student enters a massage therapy educational program and is terminated or withdraws, the minimum refund of the tuition will be:

(A) during the first week or one-tenth of the program, whichever is less, 90% of the remaining tuition;

(B) after the first week or one-tenth of the program, whichever is less, but within the first three weeks of the program, 80% of the remaining tuition;

(C) after the first three weeks of the program, but within the first quarter of the program, 75% of the remaining tuition;

(D) during the second quarter of the program, 50% of the remaining tuition;

(E) during the third quarter of the program, 10% of the remaining tuition; and

(F) during the last quarter of the program, the student may be considered obligated for the full tuition;

(5) refunds of items of extra expense to the student, such as instructional supplies, books, student activities, laboratory fees, service charges, rentals, deposits, and all other such ancillary miscellaneous charges, where these items are separately stated and shown in the pre-enrollment information, will be made in a reasonable manner;

(6) if a program is discontinued by the massage school and this prevents the student from completing the program:

(A) all tuition and fees paid shall be refunded if the student is not provided with a transcript of all successfully completed hours within thirty (30) days of discontinuance of the program; or

(B) in the event an additional or changed location is ten (10) miles or more from the previously approved location of instruction and an enrolled student is unable to complete the program at the additional or changed location as determined by the department:

(i) all tuition and fees paid shall be refunded if the student is not provided with a transcript of all successfully completed hours within thirty (30) days of the change of location; or

(ii) all unearned tuition and fees shall be refunded if a transcript of all successfully completed hours is provided within thirty (30) days of the change of location; and

(7) If a student did not meet the admission requirements of a program and the student does not complete the program for any reason, all tuition and fees shall be refunded.

(c) In all refund computations, leaves of absence, suspensions, school holidays, days when classes are not offered, and summer vacations shall not be counted as part of the elapsed time for purposes of calculating a student's refund.

(d) A massage therapy educational program is considered to have made a good faith effort to consummate a refund if the student's file contains evidence of the following attempts:

(1) certified mail to student's last known address;

(2) certified mail to the student's permanent address; and

(3) certified mail to the address of the student's parent, if different from the permanent address and if known.

(e) If the department determines that the method used to calculate refunds is not in compliance with this section and if the massage school does not provide the correct refund promptly, the school shall submit a report of an audit conducted by a certified public accountant or public accountant of the refunds due former students. The audit report shall be accompanied by a schedule of student refunds due which shall disclose the following information for the previous four years for each former student:

(1) the name, address(es), and social security number;

(2) the last date of attendance and date of termination;

(3) the amount of refund with principal and interest separately stated, date and check number of payment if payment has been made, and any balance due; and

(4) the reason for refund.

(f) The department may take disciplinary action against the license of a massage school for a violation of this section; however, the department has no authority to recover a refund on behalf of a student.

(g) If a massage school suspends enrollments or closes, the school shall not advertise, solicit, or in any way advise prospective students, either directly or indirectly, of the program offerings.

(h) If a massage school suspends enrollments or closes, it must give written notice to the department within ten (10) days of the suspension or closure. The department shall be furnished with the names and addresses of any students who were prevented from completion by reason of the discontinuance of the program.

§117.67.Massage School Minimum Progress Standards.

(a) Appropriate standards must be implemented to ascertain the progress of the students enrolled. Each massage school shall have a progress evaluation system of a type and nature to reflect whether the student is making satisfactory progress to the point of being able to complete all subjects within the allotted time provided in the pre-enrollment information.

(b) The progress evaluation system shall be based on grading periods. A grading period shall not cover more than 25% of the required program hours.

(c) A student who is making unsatisfactory progress at the end of a grading period shall be placed on probation for the next grading period. If the student on probation achieves satisfactory progress for the subsequent grading period but has not achieved the required grades for overall satisfactory progress, the student may be continued on probation for one more grading period.

(d) When a student is placed on probation, that student will be counseled before returning to class, and the date, action taken, and terms of the probation shall be clearly indicated on the appropriate permanent records.

(e) If the student on probation fails to achieve satisfactory progress for the first probationary grading period, the student's enrollment may be terminated.

(f) The enrollment of a student who fails to achieve overall satisfactory progress for the program at the end of two successive probationary grading periods shall be terminated.

(g) A student whose enrollment was terminated for unsatisfactory progress may reenter after a minimum of one grading period.

(h) Refunds shall be made in accordance with the massage school's refund policy. The effective date of termination for purposes of refunds shall be the last day of the last probationary grading period.

(i) A student who returns after the enrollment was terminated for unsatisfactory progress shall be placed on probation for the next grading period. The student shall be advised of this action and the student's file documented accordingly. If the student does not maintain satisfactory progress during or by the end of this probationary period, the student will be terminated.

§117.68.Massage School Attendance Policy.

(a) Each massage school shall develop and implement a written policy relating to attendance for students enrolled in a massage therapy educational program or any portion of the course of instruction.

(b) The policy shall include requirements and fees for make-up work.

(c) An absence shall be charged for a full day when a student attends none of the scheduled classes on that day. A partial day of absence shall be charged for any period of absence during the day.

(d) School holidays shall not be considered as days of absence.

(e) The attendance policy shall require the termination of students who accumulate absences of:

(1) more than ten (10) consecutive school days; or

(2) more than 15% of the total clock hours in a program, or 15% of a portion of the program if a student enrolls in less than the total minimum 500 hours.

(f) Refunds shall be made in accordance with massage school's refund policy. The effective date of termination for purposes of refunds shall be the last date of absence under subsection (e). A student whose enrollment is terminated for violation of the attendance policy may not reenter before the start of the next grading period.

(g) A massage school may not start students after 10% of the program has been taught except in those cases where appropriate credit for previous education has been given by the department.

(h) Make-up work shall not be authorized for the purpose of removing an absence under subsection (e).

(i) A leave of absence for reasonable purposes acceptable to the massage therapy educational program shall not exceed the lesser of thirty (30) school days or sixty (60) calendar days.

(1) A student shall be granted only one leave of absence for each 12-month period.

(2) Attendance records shall clearly show the dates for which the leave of absence was granted. A written statement as to why the leave of absence was granted, signed by both the student and the director of the massage therapy educational program indicating approval, shall be placed in the student's file.

(3) If the student fails to return from leave, the student will be automatically terminated and a refund made in accordance with the massage school's refund policy. The effective date of termination shall be the last day of the leave of absence.

(j) Each massage therapy educational program must maintain a master record of attendance which clearly indicates the number of scheduled hours each day and the hours of absence for each student. Entries to the attendance log must indicate whether or not a student was in attendance and must be permanent.

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 April 6, 2017.

TRD-201701462

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER G. LICENSED MASSAGE ESTABLISHMENTS

16 TAC §§117.80 - 117.85

The new rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.80.Massage Establishment Application Procedures and Licensure.

(a) Unless otherwise exempt under the Act, a place of business that advertises or offers massage therapy or other massage services must be licensed by the department as a massage establishment as provided by this section.

(b) A sexually oriented business may not obtain a license from the department or operate as a massage establishment.

(c) Each applicant for a massage establishment must submit:

(1) a completed application on a department approved form; and

(2) the fee as prescribed under §117.100.

§117.81.Massage Establishment Renewal Requirements.

(a) A massage establishment license is valid for a two-year period beginning on the date of issuance of the initial license and must be renewed before the expiration date.

(b) To renew a massage establishment license, a licensee must submit:

(1) the renewal fee prescribed under §117.100;

(2) the completed renewal application on a department-approved form; and

(3) any other information deemed necessary by the department to determine compliance with the Act and this subchapter.

(c) The department shall issue a renewal license to a massage establishment that has met all renewal requirements.

§117.82.Massage Establishments--General Requirements.

(a) A massage establishment shall employ or contract with only licensed massage therapists to perform massage therapy or other massage services. Documentation of the employment or contract relationship and verification that the licensed massage therapist is a United States citizen or a legal permanent resident with a valid work permit shall be maintained by the massage establishment and made available during an inspection or investigation. Required documentation for each person providing massage therapy or other massage services shall include:

(1) a copy of the current massage therapist license;

(2) proof of eligibility to work in the United States; and

(3) if an employee, a completed I-9 form, or if under an independent contractor or contract labor agreement, a copy of the contract signed by both the owner or operator and the licensed massage therapist.

(b) No massage establishment shall be operated until the department has approved and licensed the establishment.

(c) A massage establishment must maintain separation from rooms used wholly or in part for residential or sleeping purposes by a solid wall or by a wall with a solid door which shall remain locked during business hours.

(d) A massage establishment must display the license in a prominent location in the establishment where it is available for inspection by the public.

(e) A license issued by the department is the property of the department and must be surrendered on demand.

(f) A massage establishment is subject to inspection to verify compliance with the Act and this chapter by authorized personnel of the department at any reasonable time.

(1) Massage establishments shall be inspected periodically and as a result of a complaint. These inspections will be performed to determine compliance with the requirements of the Act and this chapter.

(2) The department inspector will contact the establishment owner, manager, or their representative upon arrival at the establishment and before proceeding with the inspection.

(3) The establishment owner, manager, or their representative shall cooperate with the inspector in the performance of the inspection.

(4) Each establishment shall be inspected at least once every two years.

(5) Upon completion of the inspection, the owner, manager, or their representative shall be advised in writing of the results. The inspection report will list violations identified during the inspection.

(g) A massage establishment may not:

(1) employ or contract with an individual who is not a United States citizen or a legal permanent resident with a valid work permit;

(2) employ a minor unless the minor's parent or legal guardian authorizes in writing the minor's employment by the establishment;

(3) allow a nude or partially nude employee to provide massage therapy or other massage services to a customer;

(4) allow any individual, including a client, student, license holder, or employee, to engage in sexual contact in the massage establishment;

(5) allow any individual, including a student, license holder, or employee, to practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire of any individual; or

(6) allow an unlicensed student to provide massage therapy or other massage services to the public beyond the department-approved internship.

(h) A massage establishment shall:

(1) properly maintain and secure for each client the initial consultation documents, all session notes, and related billing records; and

(2) maintain a current list of all establishment employees and/or contractors at all times which includes:

(A) full name; and

(B) license number and expiration date (if licensed as a massage therapist).

(i) For purposes of this section:

(1) "Nude" means a person who is:

(A) entirely unclothed; or

(B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts or any portion of the genitals or buttocks.

(2) "Sexual contact" includes:

(A) any touching of any part of the genitalia or anus;

(B) any touching of the breasts of a female client, unless the touching is breast massage that is specifically authorized by the client through the signed consultation document referenced in §117.91;

(C) any offer or agreement to engage in any activity described in subparagraph (A) or (B);

(D) kissing;

(E) deviate sexual intercourse, sexual contact, sexual intercourse, indecent exposure, sexual assault, prostitution, and promotions of prostitution as described in Penal Code, Chapters 21, 22, and 43, or any offer or agreement to engage in such activities;

(F) any behavior, gesture, or expression that may reasonably be interpreted as inappropriately seductive or sexual; or

(G) inappropriate sexual comments about or to a client, including sexual comments about a person's body.

§117.83.Sanitation Requirements for Massage Establishments.

(a) Each massage establishment shall be maintained in accordance with applicable state and local sanitary or health codes and regulations.

(b) A massage establishment and all fixed equipment shall:

(1) be thoroughly cleaned on a routine basis;

(2) be rendered free from harmful organisms by the application of an accepted bactericidal agent; and

(3) be in good working condition at all times.

(c) Toilet facilities shall be kept clean, sanitary, and in working order at all times. Restrooms shall not be used as storage rooms.

(d) Each location shall provide hand washing facilities, including hot and cold running water, located near or adjacent to the toilet room or rooms. Hot air blowers or suitable holders for sanitary towels and dispensers for soap shall be provided, and be adequately supplied at all times.

(e) All trash containers must be emptied daily and kept clean by washing or using plastic liners.

(f) Disposable sheets, towels, or protectors which cannot be disinfected will be disposed of in a waste receptacle immediately after use.

(g) Furniture, equipment, and other fixtures shall be of a washable material and kept clean and in good repair. Electrical equipment shall be kept sanitary and safe at all times.

(h) Clean sheets shall be used on each client.

(i) Soiled sheets are to be discarded. After a sheet has been used once, it shall be deposited in a closed or partially closed receptacle, container, or basket, and shall not be used again until properly washed and disinfected.

(j) Used towels shall be washed in chlorinated hot water.

(k) Oil must be kept in closed containers.

§117.84.Massage Establishment Exemptions.

(a) A place of business is not required to hold a massage establishment license under the Act if:

(1) the place of business is owned by the federal government, the state, or a political subdivision of the state;

(2) at the place of business, a licensed massage therapist practices as a solo practitioner and:

(A) does not use a business name or assumed name; or

(B) uses a business name or an assumed name and provides the massage therapist's full legal name or license number in each advertisement and each time the business name or assumed name appears in writing;

(3) at the place of business, an acupuncturist, athletic trainer, chiropractor, cosmetologist, midwife, nurse, occupational therapist, perfusionist, physical therapist, physician, physician assistant, podiatrist, respiratory care practitioner, or surgical assistant licensed or certified in this state employs or contracts with a licensed massage therapist to provide massage therapy as part of the person's practice; or

(4) at the place of business, a person offers to perform or performs massage therapy:

(A) for not more than 72 hours in any six-month period; and

(B) as part of a public or charity event, the primary purpose of which is not to provide massage therapy.

(b) Unless the person is exempt from the licensing requirement, a person may not represent that the person is a massage establishment unless the person holds an appropriate license under this subchapter.

§117.85.Massage Establishment Change of Ownership or Change of Location.

(a) No massage establishment license shall be transferred, bartered, or sold to another person or owner. The new owner of a massage establishment must apply for a license as a new applicant. A massage establishment may not operate under a new owner until a massage establishment license is issued by the department to the new owner. A license issued under this chapter is not transferable.

(b) The department may consider the addition or deletion of any person defined as an owner as a change in ownership. The massage establishment must notify the department of the change in ownership within thirty (30) days before the change in ownership to request that the department, in lieu of a full application, accept a partial application.

(c) The department may require submission of a full application for approval for a change in ownership if:

(1) the department has a reasonable basis to believe the change in ownership of the establishment may significantly affect the establishment's continued ability to meet the criteria for approval; or

(2) the establishment fails to file notice of the change of ownership within thirty (30) days of the ownership transfer.

(d) The department may require a partial application for approval for a change in ownership if the department reasonably believes the change in ownership will not significantly affect the establishment's continued ability to meet the criteria for approval.

(e) No massage establishment license shall be transferred to another location. If the location of an establishment changes, a new application for licensure must be submitted and approved before the establishment may provide massage therapy or other massage therapy services.

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 April 6, 2017.

TRD-201701463

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER H. RESPONSIBILITIES OF THE LICENSEE AND CODE OF ETHICS

16 TAC §§117.90 - 117.93

The new rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.90.General Ethical Requirements.

(a) A licensee shall not make deceptive, untrue, or fraudulent representations in the practice of massage therapy or employ a trick or scheme in the practice of massage therapy, including, but not limited to, warranty of results of such services and false claims of proficiency in any field.

(b) A licensee shall not use a work area, equipment or clothing that is unclean or unsanitary.

(c) A licensee shall not practice massage therapy fraudulently, with gross incompetence, with gross negligence on a particular occasion, or with negligence or incompetence on more than one occasion.

(d) A licensee shall bill clients or third parties only for those services actually rendered or as agreed to by mutual understanding at the beginning of services or as later modified by mutual agreement.

(e) A licensee must either honor an unexpired gift certificate issued by that licensee or provide a full refund.

(f) For each client, a licensee shall keep accurate records of the dates of massage therapy services, types of massage therapy and billing information. Such records must be maintained for a minimum of two years.

(g) A licensee must obtain the written consent of a parent or guardian to provide massage therapy services to a person under the age of 17.

(h) On the written request of a client, a client's guardian, or a client's parent if the client is under the age of 17, a licensee shall provide a written explanation of the charges for massage therapy services previously made on a bill or statement of the client. This requirement applies even if the charges are to be paid by a third party.

(i) A licensee shall not abuse alcohol or drugs in any manner which detrimentally affects the provision of massage therapy or massage therapy instruction.

(j) A licensee may not overcharge or over treat a client.

(k) A licensee shall not practice in an unlicensed massage establishment or massage school.

(l) A licensee shall not allow an unlicensed person to engage in activity for which licensure is required.

(m) A licensee shall not provide false information on material submitted to the department.

(n) A licensee shall not interfere with a department investigation by the willful misrepresentation of facts to the department or its authorized representative, or by the use of threats, retaliation, or harassment against any person.

(o) A licensee shall comply with any formal order issued by the department relating to the licensee.

(p) A licensee shall be subject to disciplinary action by the department if the licensee is issued a public letter of reprimand, is assessed a civil penalty by a court, or has an administrative penalty imposed by the attorney general's office under the Texas Code of Criminal Procedure, Chapter 56, Subchapter B.

(q) A licensee shall notify each client of the name, mailing address, telephone number, and web address of the department for the purpose of directing complaints to the department by providing notification:

(1) on each written contract for services of a licensee;

(2) on a sign prominently displayed in the primary place of business of each licensee;

(3) on a bill for service provided by a licensee to a client or third party; or

(4) by another written and documented method.

(r) A licensee shall keep his or her licensure file updated by notifying the department, in writing, of changes of names, address, telephone number and employment.

(s) A licensee shall be subject to disciplinary action for failure to truthfully respond in a manner that fully discloses all information in an honest, materially responsive, and timely manner to a complaint filed with or by the department.

(t) A licensee shall not make any false, misleading, deceptive, fraudulent, or exaggerated claim or statement about the licensee's services, including, but not limited to:

(1) the effectiveness of services;

(2) the licensee's qualifications, capabilities, background, training, experience, education, certification or licensure, professional affiliations, fees, products, or publications; or

(3) the practice or field of massage therapy.

§117.91.Consultation Document.

(a) A licensee shall provide an initial consultation to each client before the first massage therapy session and obtain the signature of the client on the consultation document. The consultation document shall include:

(1) the type of massage therapy services or techniques the licensee anticipates using during the massage therapy session;

(2) the parts of the client's body that will be massaged or the areas of the client's body that will be avoided during the session, including indications and contraindications;

(3) a statement that the licensee shall not engage in breast massage of female clients without the written consent of the client;

(4) a statement that draping will be used during the session, unless otherwise agreed to in writing by both the client and the licensee;

(5) a statement that if uncomfortable for any reason, the client may ask the licensee to cease the massage and the licensee will end the massage session; and

(6) the signature of both the client and the licensee.

(b) If the client's reason for seeking massage therapy changes at any time and any of the information in subsection (a)(1) - (4), is modified, the licensee must provide an updated consultation reflecting any changes and modifications to the techniques used or the parts of the client's body to be massaged.

§117.92.Sexual Misconduct.

(a) A licensee shall not engage in sexual contact during a session with a client. For the purposes of this section, sexual contact includes:

(1) any touching of any part of the genitalia or anus;

(2) any touching of the breasts of a female client, unless the touching is breast massage that is specifically authorized by the client through the signed consultation document referenced in §117.91;

(3) any offer or agreement to engage in any activity described in paragraph (1) or (2);

(4) kissing;

(5) deviate sexual intercourse, sexual contact, sexual intercourse, indecent exposure, sexual assault, prostitution, and promotion of prostitution as described in the Texas Penal Code, Chapters 21, 22, and 43, or any offer or agreement to engage in any such activities;

(6) any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexual; or

(7) inappropriate sexual comments about or to a client, including making sexual comments about a person's body.

(b) A licensee shall not allow any individual, including a client, student, licensee, employee, participant in a continuing education program, or one's self to engage in sexual contact on the premises of any massage school, massage establishment, or the licensee's own place of business.

(c) A licensee shall not allow any individual, including a student, licensee, employee, or one's self to practice massage therapy or provide other massage therapy services in the nude, while partially nude, or in clothing designed to arouse or gratify the sexual desire of any individual.

(d) A licensee shall not perform massage therapy, whether or not for compensation, at or for a sexually oriented business.

(e) A licensee shall immediately discontinue the massage therapy session, activity or the professional relationship when a client initiates any verbal or physical contact with the licensee that is intended to arouse or gratify the sexual desire of either person.

§117.93.Advertising.

(a) A person, including a massage therapy instructor, a massage school, a massage therapist, or massage establishment, who is not licensed under the Act, shall not use the word "massage" on any sign, display, or other form of advertising unless the person is expressly exempt from the license requirements of the Act. Under no circumstances may a sexually oriented business use the word "massage" or "bath" on any sign or other form of advertising.

(b) A licensee shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification. False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes advertising that:

(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;

(3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;

(4) contains a testimonial;

(5) causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional;

(6) advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;

(7) advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;

(8) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of client; or

(9) advertises or represents in the use of a professional name, title or professional identification that is expressly or commonly reserved to or used by another profession or professional.

(c) When an assumed name is used in a person's practice as a massage therapist, the full legal name of the massage therapist or license number of the massage therapist must be listed in each advertisement and each time the business name or assumed name appears in writing. The license number of a massage establishment must be listed in conjunction with the assumed or legal name of the massage establishment. An assumed name used by a massage therapist must not be false, misleading, or deceptive.

(d) A massage school shall not make false, misleading, or deceptive statements concerning the activities or programs of another massage school.

(e) Advertisements by a massage therapy educational program seeking prospective students must clearly indicate that training is being offered, and shall not, either by actual statement, omission, or intimation, imply that prospective employees are being sought.

(f) Advertisements seeking prospective students must include the full and correct name and license number of the massage therapy educational program and massage school.

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 April 6, 2017.

TRD-201701465

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER I. FEES

16 TAC §117.100

The new rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.100.Fees.

(a) All fees paid to the department are non-refundable.

(b) Fees related to massage therapists are as follows:

(1) initial application fee--$100;

(2) renewal application fee (for two-year license)--$100.

(c) Fees related to massage establishments are as follows:

(1) initial application fee:

(A) for each massage school primary instructional location or approved additional location--$100;

(B) for all other establishment applicants--$300;

(2) renewal application fee (for two-year license):

(A) for each massage school primary instructional location or approved additional location--$100;

(B) for all other establishment renewal applicants--$300.

(d) Fees related to massage schools offering the massage therapy educational program are as follows:

(1) initial application fee (includes inspection)--$2,800;

(2) renewal application fee (for a two-year period)--$2,000;

(3) change of instructional address for main campus (includes inspections)--$375;

(4) application fee for an additional massage school location separate from the main campus (includes inspection)--$750; and

(5) renewal fee for an additional massage school location separate from the main campus--$750.

(e) Fees related to massage therapy instructors are as follows:

(1) initial application fee--$200;

(2) renewal application fee (for a two-year period)--$200;

(f) The fees related to approved providers for continuing education are as follows:

(1) initial application fee--$200;

(2) renewal application fee (for a two-year period)--$200.

(g) A duplicate/replacement fee for licenses issued under this chapter is $25.

(h) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

(i) A dishonored/returned check or payment fee is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

(j) Late renewal fees for licenses issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

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 April 6, 2017.

TRD-201701466

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER J. ENFORCEMENT PROVISIONS

16 TAC §§117.110 - 117.112

The new rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.110.Complaints.

(a) Any person may file a complaint with the department alleging that a massage therapist, massage school, massage therapy instructor, massage establishment, continuing education provider, or another person or business has violated the Act or this chapter.

(b) A person wishing to file a complaint against a massage therapist, massage school, massage therapy instructor, massage establishment, continuing education provider, or another person or business shall notify the department at Texas Department of Licensing and Regulation, Massage Therapy Program, P.O. Box 12157, Austin, Texas 78711, (512) 539-5600, or www.tdlr.texas.gov.

§117.111.Administrative Penalties and Sanctions.

(a) If a person or entity violates any provision of Texas Occupations Code, Chapters 51 or 455, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapters 51 and 455 and any associated rules.

(b) The commission or executive director may refuse to issue a license to a person, suspend or revoke the license of a person, or place a person licensed under the Act on probation if the person:

(1) obtains a license by fraud, misrepresentation, or concealment of material facts;

(2) sells, barters, or offers to sell or barter a license;

(3) violates a rule adopted by the commission;

(4) engages in unprofessional conduct that endangers or is likely to endanger the health, welfare, or safety of the public;

(5) violates an order or ordinance adopted by a political subdivision under Local Government Code, Chapter 243; or

(6) violates this chapter.

(c) The commission or executive director shall revoke the license of a person if:

(1) the person is convicted of, enters a plea of nolo contendere or guilty to, or receives deferred adjudication for an offense involving prostitution or another sexual offense; or

(2) the department determines the person has practiced or administered massage therapy at or for a sexually oriented business.

(d) The commission or executive director shall revoke the license of a person licensed as a massage school or massage establishment if the department determines that:

(1) the school or establishment is a sexually oriented business; or

(2) an offense involving prostitution or another sexual offense that resulted in a conviction for the offense, a plea of nolo contendere or guilty to the offense, or a grant of deferred adjudication for the offense occurred on the premises of the school or establishment.

§117.112.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapters 51 and 455 and any associated rules may be used to enforce Texas Occupations Code, Chapter 455 and this chapter.

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 April 6, 2017.

TRD-201701467

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


CHAPTER 118. LASER HAIR REMOVAL

16 TAC §§118.1 - 118.3, 118.10, 118.20, 118.30 - 118.35, 118.40, 118.50, 118.60, 118.61, 118.70, 118.71, 118.80, 118.90, 118.91, 118.100, 118.110

The Texas Department of Licensing and Regulation (Department) proposes new rules at 16 Texas Administrative Code (TAC), Chapter 118, §§118.1 - 118.3, 118.10, 118.20, 118.30 - 118.35, 118.40, 118.50, 118.60, 118.61, 118.70, 118.71, 118.80, 118.90, 118.91, 118.100 and 118.110, regarding the Laser Hair Removal program.

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the Department of State Health Services (DSHS) to the Texas Commission of Licensing and Regulation (Commission) and the Department. The Commission and Department completed the Phase 1 transition of seven programs on October 3, 2016.

Under Phase 2, the following six programs are being transferred from DSHS to the Commission and the Department: (1) Laser Hair Removal, Texas Health and Safety Code, Chapter 401, §§401.501 - 401.522; (2) Massage Therapy, Texas Occupations Code, Chapter 455; (3) Code Enforcement Officers, Texas Occupations Code, Chapter 1952; (4) Sanitarians, Texas Occupations Code, Chapter 1953; (5) Mold Assessors and Remediators, Texas Occupations Code, Chapter 1958; and (6) Offender Education Programs, Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). The statutory amendments transferring regulation of these six Phase 2 programs from DSHS to the Commission and the Department will take effect on September 1, 2017.

The new rules are proposed to enable the Commission and the Department to regulate the six Phase 2 programs listed above. The proposed new rules provide for the Department to perform the various functions, including licensing, compliance, and enforcement, necessary to regulate these transferred programs. The anticipated effective date of the proposed rules is November 1, 2017. The effective date will coincide with the completion of the transfer of the programs to the Commission and the Department.

The proposed new rules under 16 TAC Chapter 118 are necessary to implement S.B. 202 and to regulate the Laser Hair Removal program under the authority of the Commission and the Department. These proposed new rules are separate from and are not to be confused with the DSHS rules located at 25 TAC Chapter 289, Subchapter G, regarding the Laser Hair Removal program, which are still in effect.

The Department held public summits on March 6, 2017, in Arlington, Texas; March 8, 2017, in Houston, Texas; and March 10, 2017, in Austin, Texas, to get initial feedback on a draft of the proposed rules prior to publication of the proposed rules in the Texas Register.

The proposed new §118.1 provides the statutory authority for the Commission and the Department to regulate laser hair removal.

The proposed new §118.2 establishes the purpose of this chapter.

The proposed new §118.3 details the scope of this chapter in regards to laser hair removal.

The proposed new §118.10 creates the definitions to be used in the laser hair removal program.

The proposed new §118.20 details who is prohibited from performing laser hair removal.

The proposed new §118.30 details the requirements and necessary application for a laser hair removal facility certificate.

The proposed new §118.31 explains the responsibilities for a laser hair removal facility.

The proposed new §118.32 establishes the laser safety officer designation and responsibilities.

The proposed new §118.33 provides the requirements and application for a laser hair removal individual certificate.

The proposed new §118.34 establishes auditing and supervision requirements for laser hair removal professionals and senior laser hair removal technicians.

The proposed new §118.35 creates continuing education requirements.

The proposed new §118.40 details the license terms and renewal requirements.

The proposed new §118.50 explains the requirements for certifying entities and examinations.

The proposed new §118.60 establishes responsibilities and protocols for consulting physicians.

The proposed new §118.61 details audits of laser hair removal facility protocols and operations for consulting physicians.

The proposed new §118.70 creates general and operating requirements for laser hair removal devices.

The proposed new §118.71 provides when laser hair removal devices are stolen, lost, or missing.

The proposed new §118.80 details the fees to be used in the laser hair removal program.

The proposed new §118.90 allows for administrative penalties and sanctions.

The proposed new §118.91 provides the authority to enforce Health and Safety Code, Chapter 401, Subchapter M, this chapter and any provision within.

The proposed new §118.100 establishes records retention requirements.

The proposed new §118.110 explains disclosure and confidentiality requirements.

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed new rules are in effect there will be no estimated reductions in costs for the State or local government as a result of enforcing or administering the rules. However, the Department has determined there will be an additional cost to the State as a result of these proposed rules. The proposed rules require that all applicants and licensed facilities must pass a criminal history background check. This proposed requirement applies at the time of application or license renewal. Background checks were not performed by DSHS for this regulated population. The cost to the Department for each background check is $1 and the fees are remitted to the Texas Department of Public Safety. In Fiscal Year 2016, DSHS received 1,120 initial and renewal applications. This is estimated to result in an ongoing additional cost to the State of $1,120 per fiscal year for the first five year the rule is in effect. There will be no additional estimated costs to local government and no estimated loss or increase in revenue to the State or local government as a result of enforcing or administering the rule.

The proposed rules also allow for the Department’s standard program fees to include a dishonored payment device fee of $50; a criminal history evaluation letter fee of $25; and a duplicate license fee of $25. The Department does not anticipate a significant increase of revenue as a result of these fees because they are discretionary based on the needs and actions of licensees.

Mr. Francis also has determined that for each year of the first five-year period the proposed new rules are in effect, the public benefit will include that the rules implement the statutory requirements under the authority of the Commission and the Department and provide details that are not found in the enabling acts. The rules also have been formatted and organized to assist the public, the regulated community, and the Department in easily finding specific rules. In addition, the new rules are streamlined so as not to duplicate provisions that are already located in the statutes and rules of the Commission and Department in Texas Occupations Code, Chapter 51 and in 16 TAC Chapter 60, which apply to all programs regulated by the Commission and the Department. The proposed new rules also provide for the effective and efficient regulation of laser hair removal procedures, which enhances public health, safety, and welfare.

There will be no adverse effect on small or micro-businesses as a result of the proposed new rules. There are no anticipated economic costs to persons who are required to comply with the proposed new rules. The above mentioned standard program fees are discretionary and will not constitute a burden considering a minimal number of licensees might need to pay them based on the needs and actions of the individuals and licensees.

Since the agency has determined that the proposed new rules will have no adverse economic effect on small or micro-businesses, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, under Texas Government Code §2006.002, is not required.

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032; or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The new rules are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 401, §§501 - 522, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 401, Sections 501 - 522. No other statutes, articles, or codes are affected by the proposal.

§118.1.Authority.

This chapter is promulgated under the authority of the Texas Occupations Code, Chapter 51 and Texas Health and Safety Code, Chapter 401.

§118.2.Purpose.

(a) This chapter establishes requirements for:

(1) radiation safety in the use of lasers or pulsed light devices for hair removal procedures;

(2) laser hair removal (LHR) facility operations, training and qualifications for persons performing LHR procedures, customer notification, consulting physicians, enforcement, penalties, and responsibilities of the registrant, laser safety officer (LSO), certified individuals, and consulting physicians;

(3) the registration of LHR facilities and the certification of individuals who perform or attempt to perform LHR procedures.

(b) No person may operate a LHR facility except as authorized in a certificate of LHR registration issued by the department in accordance with the requirements of this chapter.

(c) No person may perform or attempt to perform LHR except as authorized in a certificate issued by the department in accordance with this chapter.

§118.3.Scope.

(a) Except as otherwise specifically provided, this chapter applies to all persons who operate a location that provides LHR procedures using LHR devices and to all persons who perform or attempt to perform LHR procedures using LHR devices.

(b) This chapter does not apply to the manufacture of LHR devices.

(c) A LHR device used for nonablative hair removal procedures shall meet the applicable performance standards for light-emitting products specified in Title 21, Code of Federal Regulations (CFR), §1040.10 and §1040.11.

(d) Except for consulting physicians, this chapter does not apply to a physician or to a physician's employee or delegate acting under Texas Occupations Code, Chapter 157.

(e) A certificate issued in accordance with this chapter only authorizes a person to perform nonablative cosmetic LHR. The certificate issued in accordance with this chapter does not authorize an individual to diagnose, treat, or offer to treat any client for any illness, disease, injury, defect or deformity of the human body.

(f) This chapter applies only to LHR devices used for nonablative hair removal. Lasers or pulsed light devices used for any other purpose shall comply with the requirements of 22 TAC §289.301 (relating to Registration and Radiation Safety Requirements for Lasers and Intense-Pulsed Light Devices).

(g) A person who receives, possesses, uses, owns, or acquires LHR devices prior to receiving a certificate of LHR registration is subject to the requirements of this chapter and 22 TAC §289.301.

(h) A health professional licensed under another law is not required to hold a certificate to perform laser hair removal procedures issued in accordance with this chapter if the performance of laser hair removal is within the scope of that professional's practice as determined by the professional's licensing board.

(i) The qualifications for eligibility for an applicant for a senior LHR technician certificate who is a licensed health professional shall be established by the entity that issues licenses for that health profession.

(j) Training programs complying with the requirements of §118.33(e), are also subject to certain requirements of 22 TAC §289.226 (relating to Registration of Radiation Machine Use and Services).

(k) A LHR device categorized by the United States Food and Drug Administration (FDA) as a prescription device shall meet the requirements for prescription use specified in Title 21, CFR, §801.109. For purposes of this chapter:

(1) the requirements for a consulting physician specified in §118.30, shall satisfy the requirement for supervision by a physician specified in Title 21, CFR, §801.109; and

(2) the requirement for a consulting physician to establish protocols for a LHR facility in accordance with §118.30, shall satisfy the requirement for a prescription for use as specified in Title 21, CFR, §801.109.

(l) A LHR device shall be purchased by or on the order of a physician, in accordance with Title 21, CFR, §801.109 and 118.71.

§118.10.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Texas Radiation Control Act, Health and Safety Code, Chapter 401.

(2) Adverse event--Any death or serious injury, as that term is defined in Title 21, CFR, §803.3, to a client or employee of a LHR facility that is a result of use, misuse, or failure of LHR devices or LHR safety equipment.

(3) Advertising--All representations disseminated in any manner or by any means for the purpose of inducing, or that are likely to induce, directly or indirectly, the purchase of laser hair removal services.

(4) Applicant--A person seeking a certificate of LHR registration or individual LHR certificate, issued in accordance with the provisions of the Act and the requirements in this chapter.

(5) Certificate of LHR registration--A form of permission given by the department to a LHR facility applicant who has met the requirements for LHR registration certification. For purposes of this chapter, "certificate of LHR registration" is an equivalent term for "facility license" as specified in Health and Safety Code, §401.510.

(6) Certified individual--Any individual issued an individual LHR certificate by the department.

(7) Commission--The Texas Commission on Licensing and Regulation.

(8) Consulting physician--A physician who has a contract with a LHR facility.

(9) Contract--A written legal document between a consulting physician and the operator of a LHR facility.

(10) Customer--For purposes of this chapter, "client' is an equivalent term for "customer".

(11) Department--The Texas Department of Licensing and Regulation.

(12) Direct supervision--Direct observation by a senior LHR technician or a LHR professional of LHR procedures performed by a LHR apprentice-in-training. Direct supervision shall include the following:

(A) the physical presence of senior LHR technician or LHR professional at the LHR facility;

(B) the availability of the senior LHR technician or LHR professional to give immediate assistance if required; and

(C) the direct observation by the senior LHR technician or LHR professional of LHR procedures performed by a LHR apprentice-in-training.

(13) Executive Director--The executive director of the department.

(14) Individual LHR certificate-- An individual who has met the requirements for individual LHR certification. The term includes certificates issued by the department for a LHR professional, a senior LHR technician, a LHR technician, and a LHR apprentice-in-training.

(15) Laser hair removal (LHR)--The use of a laser or pulsed light device for nonablative hair removal procedures. For purposes of this chapter, "laser hair reduction" is an equivalent term.

(16) Laser hair removal facility--A business location that provides laser hair removal.

(17) Laser hair removal procedure--The removal of hair from one of the four body areas specified below, conducted during the same or separate appointment. Each area is considered one procedure, regardless of how many individual body parts are treated within that area:

(A) head and neck;

(B) upper extremities, to include hands, arms (including armpits), and shoulders;

(C) torso, to include front and back (including pelvic region and buttocks); or

(D) lower extremities, to include legs and feet.

(18) Laser or pulsed light device--A device approved by the FDA for laser hair removal or reduction. For purposes of this chapter, "LHR device" is an equivalent term.

(19) Laser safety officer (LSO)--An individual who has knowledge of and the authority and responsibility to apply appropriate laser radiation protection rules, standards, and practices, and who shall be specifically authorized on a certificate of LHR registration.

(20) Licensed health professional--An individual licensed in accordance with Occupations Code, Title 3.

(21) Living quarters--Any area used as a place of abode with provisions for sleeping, cooking, and sanitation.

(22) Mobile LHR facility--A business location self-contained within a vehicle that provides LHR procedures within the vehicle and meets all the requirements of this section.

(23) Nonablative hair removal procedure--A hair removal procedure using a LHR device that does not remove the epidermis.

(24) Operator--The owner of a LHR facility, an agent of an owner, or an independent contractor of a LHR facility.

(25) Person--Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, agency, local government, any other state or political subdivision or agency thereof, or any other legal entity, and any legal successor, representative, agent, or agency of the foregoing.

(26) Physician--An individual who meets the definition in Texas Occupations Code, Title 3, Subtitle B, Chapter 151.

(27) Registrant--Any facility issued a certificate of LHR registration by the department. For purposes of this chapter, "certificate of LHR registration" is an equivalent term for "facility license" as specified in Health and Safety Code, §401.510.

(28) Supervision--The physical presence of a senior LHR technician or LHR professional at the LHR facility.

§118.20.Prohibitions.

(a) The department may prohibit the use of LHR devices that pose a significant threat or endanger occupational or public health and safety, in accordance with §118.2.

(b) A person shall not operate a LHR facility unless the person holds a certificate of LHR registration issued by the department in accordance with this chapter.

(c) An individual shall not use LHR devices to perform or attempt to perform LHR procedures unless the person holds the individual LHR certificate issued by the department in accordance with this chapter.

(d) An individual shall not operate a laser hair removal device with the intent to treat an illness, disease, injury, or physical defect or deformity unless the individual is:

(1) a physician;

(2) acting under a physician's order; or

(3) authorized under other law to treat the illness, disease, injury, or physical defect or deformity in that manner.

(e) A person who violates subsection (d), is practicing medicine in violation of Occupations Code, Title 3, Subtitle B, and is subject to the penalties under that subtitle and under Health and Safety Code, §401.522.

(f) A person shall not operate a LHR facility from a person's living quarters. A LHR facility shall be separated from living quarters by complete floor to ceiling partitioning and shall contain no access to living quarters.

§118.30.Laser Hair Removal Facility Certificate--Requirements and Application.

(a) A separate LHR application shall be submitted for each LHR facility.

(b) A separate certificate of LHR registration is required for each LHR facility.

(c) A certificate of LHR registration for a LHR facility is not required for the following:

(1) a facility owned or operated by a physician for the practice of medicine;

(2) a licensed hospital; or

(3) a clinic owned or operated by a licensed hospital.

(d) A certificate of LHR registration is required for a facility owned or operated by a physician that performs only LHR procedures.

(e) A certificate of laser registration issued in accordance with 22 TAC §289.301 may be required for the entities specified in subsection (c) that own, possess, or use lasers for purposes other than LHR.

(f) An applicant for a facility certificate of LHR registration shall complete a department-approved application which must include:

(1) a qualified LSO designated on each application form pursuant to §118.32;

(2) a qualified LHR professional(s) designated on each application form;

(3) A copy of a written contract with a consulting physician which includes the following:

(A) proper protocols for the services provided by the consulting physician at the facility as specified in §118.60;

(B) a provision for the consulting physician to audit the LHR facility's protocols and operations in accordance with §118.61;

(C) a commitment that the consulting physician shall be available for emergency consultation with the LHR facility as appropriate to the circumstances, including, if the physician considers it necessary, an emergency appointment with the client; and

(D) a designated physician who shall be available for the consultation with the LHR facility relating to care for the client if the consulting physician is unavailable;

(4) the required fee prescribed under §118.80.

(g) An application for a LHR facility shall be signed by an operator and LSO.

§118.31.Laser Hair Removal Facility--Responsibilities.

(a) The LHR facility registrant must notify the department in writing of any changes that would render the information contained in the application for LHR registration or the certificate of LHR registration inaccurate.

(b) Notification is required within thirty (30) days of the following:

(1) change in business name of the LHR facility;

(2) change in physical location of the LHR facility;

(3) change in street address where LHR devices will be used;

(4) change in LSO;

(5) loss or change of the LHR facility's LHR professional; or

(6) loss or change of the LHR facility's consulting physician.

(c) The LHR facility registrant shall comply with the adverse reporting requirements for device user facilities in Title 21, CFR, Part 803 - Medical Device Reporting. Copies of all reports of adverse events submitted in accordance with Title 21, CFR, Part 803 shall be submitted to the department within 24 hours of their initial submission to the manufacturer, FDA or both as determined by the consulting physician in accordance with §118.60.

(d) If the LHR facility registrant loses the services of the consulting physician, the registrant may use another physician(s) who has been designated in the contract in accordance with §118.30. If the LHR facility registrant loses the services of both designated consulting physicians, the LHR facility registrant shall immediately cease LHR procedures until the LHR facility registrant establishes a contractual relationship with a consulting physician.

(e) Each registrant shall conduct a physical inventory of all LHR devices in its possession at an interval not to exceed 1 year. Records of the inventories shall be made and maintained in accordance with this chapter, and shall include:

(1) LHR device manufacturer's name;

(2) model and serial number of the LHR device;

(3) specific location of the LHR device (for example, room number);

(4) name, title, and signature of the person performing the inventory; and

(5) date the inventory was performed.

(f) Each registrant shall maintain records of receipt, transfer, and disposal for each LHR device in accordance with this chapter. The records shall include the following information:

(1) LHR manufacturer's name;

(2) model and serial number of the LHR device;

(3) date of the receipt, transfer, or disposal;

(4) name and address of person LHR devices were received from, transferred to, or disposed of with; and

(5) name of the individual recording the information.

(g) A LHR operator is responsible for maintaining the LHR facility's compliance with the requirements of the Act and this chapter.

(h) A LHR operator shall not claim, advertise, or distribute promotional materials that claim that laser hair removal is free from risk or provides any medical benefit.

(i) A LHR operator shall not produce false or misleading advertising regarding the services offered at the facility. An advertisement of services using lasers for hair removal shall be deemed to be false or misleading if it is inaccurate or misleading in any particular regarding representations made or suggested or failure to reveal material facts with respect to consequences which may result from the use of such services.

(j) When a LHR facility registrant decides to terminate all activities involving LHR devices authorized under the facility certificate of LHR registration, the registrant shall immediately:

(1) request termination of the facility certificate of LHR registration in writing; and

(2) submit to the department a record of the disposition of the LHR devices, and if transferred, to whom the devices were transferred.

(k) Each facility certificate of LHR registration issued in accordance with this chapter shall be subject to the applicable provisions of the Act and to the applicable rules and orders of the department.

(l) No certificate of LHR registration issued or granted under this chapter shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, to any person.

§118.32.Laser Safety Officer--Designation and Responsibilities.

(a) LSO qualifications shall be submitted to the department with the completed LHR facility application and shall include at least the following:

(1) educational courses related to laser radiation safety or a LSO course; or

(2) familiarity with and experience in the use of LHR devices; and

(3) knowledge of potential laser radiation hazards and laser emergency situations.

(b) A LSO must perform the following duties, including but not limited to:

(1) ensuring that users of LHR devices are trained in laser safety;

(2) assuming control and having the authority to institute corrective actions, including shutdown of operations when necessary, in emergency situations or if unsafe conditions exist;

(3) ensuring that maintenance and other practices required for safe operation of the LHR devices are performed;

(4) ensuring the proper use of protective eyewear and other safety measures;

(5) ensuring compliance with the requirements in this section and with protocols specified by the registrant;

(6) ensuring audits required in accordance with this chapter are conducted;

(7) maintaining records as required by this chapter; and

(8) ensuring that personnel are adequately trained, certified, and complying with this chapter, the conditions of the facility certificate of LHR registration, and the protocols of the registrant.

§118.33.Laser Hair Removal Individual Certificate--Requirements and Application.

(a) All applicants for an individual LHR certificate shall:

(1) complete an application on department approved forms;

(2) submit the applicable fee(s) specified under §118.80;

(3) successfully pass a criminal history background check.

(b) Laser Hair Removal Professional Certificate Requirements. An applicant for a LHR professional certificate shall meet the following requirements:

(1) be certified by a certifying entity approved by the department pursuant to §118.50;

(2) meet the requirements for a senior LHR technician certificate in accordance with this chapter; and

(3) pass a department approved examination pursuant to §118.50.

(c) Senior Laser Hair Removal Technician Certificate Requirements. An applicant for a senior LHR technician certificate shall meet the following requirements:

(1) meet the requirements for a LHR technician certificate in accordance with this chapter; and

(2) have directly supervised at least 100 LHR procedures within 12 months, as audited by a LHR professional. An individual shall not supervise LHR procedures without audit by a LHR professional until:

(A) 100 LHR procedures within 12 months have been directly supervised, as audited by a LHR professional; and

(B) an individual senior LHR technician certificate has been issued by the department in accordance with this chapter.

(d) Laser Hair Removal Technician Certificate Requirements.

(1) An applicant for a LHR technician certificate shall meet the following requirements:

(A) meet the requirements for a LHR apprentice-in-training certificate in accordance with this chapter; and

(B) have performed at least 100 LHR procedures within 12 months under the direct supervision of a senior LHR technician or a LHR professional.

(2) An individual shall not perform LHR procedures unsupervised until:

(A) 100 LHR procedures within 12 months have been performed under the direct supervision of a senior LHR technician or LHR professional; and

(B) an individual LHR technician certificate has been issued by the department.

(e) Laser Hair Removal Apprentice-in-Training Certificate Requirements.

(1) An applicant for a LHR apprentice-in-training certificate shall meet the following requirements:

(A) have at least 24 hours of training in:

(i) LHR device safety;

(ii) laser physics;

(iii) skin typing;

(iv) skin reactions;

(v) treatment protocols;

(vi) burns;

(vii) eye protection;

(viii) emergencies; and

(ix) post-treatment protocols;

(B) have an additional 16 hours of training in:

(i) cardio-pulmonary resuscitation (a valid cardio-pulmonary resuscitation certificate may be used to satisfy up to 8 hours of the training required by this subparagraph);

(ii) review of client's pre-existing conditions to determine if consultation with a consulting physician is needed for possible diagnosis or treatment;

(iii) review of client's previous hair removal procedures by another modality;

(iv) review of client's current medications to determine if any medications need to be brought to the attention of the consulting physician based on established protocols;

(v) proper signage and posting;

(vi) use of a LHR device; and

(vii) anesthesia used in conjunction with LHR procedures.

(C) shall not perform LHR procedures unless under the direct supervision of a senior LHR technician or a LHR professional; and

(D) shall be at least 18 years of age.

(2) Training required by this section shall be obtained from a department approved training program registered with the department in accordance with the following:

(A) A department approved training program is defined as a radiation service in accordance with 22 TAC §289.226(b).

(B) A radiation service shall be registered in accordance with 22 TAC §289.226(j).

(C) A training program specified in this section shall meet the requirements of 22 TAC §289.226(a), (j)(1), (j)(2), (j)(3)(C), (k), (l), (m)(1)(A), (m)(4) - (7), (o) - (r), and (t)(1)(A).

(D) For purposes of this section, the responsibilities of a radiation safety officer specified in 22 TAC §289.226(j) may be fulfilled by a LSO.

(3) Training programs must apply on a department approved application for approval and must comply with all education requirements set out in this chapter.

(4) An application submitted to the department for approval shall include the following:

(A) course syllabus, including topics covered and time allotted for each topic;

(B) qualifications of instructors;

(C) verification that exam(s) are administered to assess the student's knowledge of material presented;

(D) the criteria for successful completion of the course;

(E) a copy of the certificate that will be issued upon successful completion of the training program; and

(F) verification that the training program is in compliance with applicable state laws, including Texas Education Code, Chapter 132.

(f) Each individual LHR certificate issued in accordance with this chapter shall be subject to the applicable provisions of the Act and to the applicable rules and orders of the department.

(g) No individual LHR certificate issued or granted under this chapter shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, to any person.

§118.34.Laser Hair Removal Professionals and Senior Laser Hair Removal Technicians--Auditing and Supervision Requirements.

(a) A physician or other licensed health professional shall not perform the auditing activities of a LHR professional in accordance with §118.33(c), unless that individual meets the requirements for a LHR professional specified in §118.33(b).

(b) A physician or other licensed health professional shall not perform the direct supervision activities of a LHR professional or senior LHR technician in accordance with §118.33(d), unless that individual meets the requirements of §118.33(b) and §118.33(c).

(c) A LHR professional shall audit and ensure that there was direct supervision of the 100 LHR procedures performed by a LHR technician while obtaining the requirements of §118.33(c)

§118.35.Continuing Education Requirements.

(a) Each individual who holds an individual LHR certificate issued by the department shall obtain eight (8) hours of continuing education hours per certificate term to include, but not limited to, the following:

(1) refresher training in the topics specified in §118.26;

(2) LHR technology updates;

(3) applicable regulatory changes; and

(4) other health and safety related topics.

(b) The continuing education hours required by this section may be obtained by web-based online training or a home-study training program.

§118.40.License Terms; Renewals.

(a) A facility certificate of LHR registration or individual LHR certificate issued by the department is valid for 2 years.

(b) Each applicant for renewal of a facility certificate of LHR registration or individual LHR certificate shall:

(1) complete an application on department approved forms; and

(2) submit the renewal fee(s) specified under §118.80;

(c) Each applicant for renewal of an individual LHR certificate must also successfully pass a criminal history background check.

(d) If a registrant does not submit an application for renewal of the facility certificate of LHR registration, the registrant shall on or before the expiration date specified in the facility certificate of LHR registration:

(1) terminate use of all LHR devices; and

(2) submit to the department a record of the disposition of the LHR devices, and if transferred, to whom the devices were transferred.

(e) Expiration of the facility certificate of LHR registration or individual LHR certificate does not relieve the registrant of the requirements of this section.

(f) Documentation of successful completion of the continuing education requirements shall be submitted with each application for renewal of an individual LHR certificate.

§118.50.Requirements for Certifying Entities and Examinations.

(a) A certifying entity shall meet the following requirements:

(1) be a non-governmental organization such as a society, association, business, or school that has an interest in or whose members participate in, or have an interest in, the field of laser hair removal;

(2) if a society or association, make its membership available to the general public nationwide that is not restricted because of race, color, religion, age, national origin or disability;

(3) if a society or association, have a certification program open to nonmembers, as well as members;

(4) be an incorporated, nationally recognized entity in good standing, that is involved in setting national standards of practice within its fields of expertise;

(5) have an adequate staff, a viable system for financing its operations, and a policy- and decision-making review board;

(6) have a set of written organizational by-laws and policies that provide adequate assurance of lack of conflict of interest and a system for monitoring and enforcing those by-laws and policies;

(7) have a committee, whose members can carry out their responsibilities impartially, to review and approve their certification guidelines and procedures, and to advise the organization's staff in implementing the certification program;

(8) have a committee, whose members can carry out their responsibilities impartially, to review complaints against certified individuals and to determine appropriate sanctions;

(9) have written procedures describing all aspects of its certification program, maintain records of the current status of an individual's certification and the administration of its certification program;

(10) have procedures to ensure that certified individuals are provided due process with respect to the administration of a certification program, including the process of becoming certified and any sanctions imposed against certified individuals;

(11) have procedures for proctoring examinations, including qualifications for proctors. These procedures shall ensure that the individuals proctoring each examination are not employed by the same company or corporation (or a wholly-owned subsidiary of such company or corporation) as any of the examinees;

(12) exchange information about certified individuals with the agency and other certifying entities and allow periodic review of its certification program and related records by the agency; and

(13) provide a description to the agency of its procedures for choosing examination sites and for providing an appropriate examination environment.

(b) To be approved by the department, a certification program shall meet the following requirements:

(1) require applicants for certification to:

(A) receive training in the topics specified in §118.33(e); and

(B) satisfactorily complete a written examination covering these topics.

(2) require applicants for certification to provide documentation that demonstrates that the applicant has:

(A) received training in the topics specified in §118.33(e); and

(B) satisfactorily completed a minimum period of on-the-job training.

(3) include procedures to ensure that all examination questions are protected from disclosure;

(4) include procedures for denying an application and revoking, suspending, and reinstating a certificate;

(5) provide a certification period of not less than 3 years nor more than 5 years;

(6) include procedures for renewing certifications and, if the procedures allow renewals without examination, require evidence of recent full-time employment and continuing education hours as required by this chapter; and

(7) provide a timely response to inquiries from members of the public about an individual's certification status.

(c) An examination administered or used by a certifying entity shall be designed to test an individual's knowledge and understanding of at least the topics specified in §118.33(e).

§118.60.Consulting Physician--Responsibilities and Protocols.

(a) The consulting physician shall be available for emergency consultation with the facility as appropriate to the circumstances, including, if the physician considers it necessary, an emergency appointment with the client.

(b) If the consulting physician is unavailable for an emergency consultation, another designated physician shall be available for the consultation with the facility relating to care for the client.

(c) The consulting physician and designated physician shall have a primary practice site located within seventy-five (75) miles of the LHR facility.

(d) The consulting physician shall be responsible for reviewing all adverse events and for determining whether such events are reportable in accordance with Title 21, CFR, Part 803.

(e) The protocols required in accordance with §118.30 shall be:

(1) written instructions agreed upon and signed and dated by the consulting physician and the LHR facility operator;

(2) maintained at the LHR facility; and

(3) reviewed and signed by the consulting physician and LHR operator at least annually.

(f) The protocols required in accordance with §118.30, shall include at least the following:

(1) which LHR procedures require a particular level of individual LHR certification;

(2) the circumstances or conditions under which each procedure is to be performed;

(3) specific instructions to be followed for individual LHR certificate holders who are working under direct supervision or who are giving direct supervision;

(4) conditions under which emergency consultation is required;

(5) designated settings, in accordance with the manufacturer's instructions, at which the LHR device can be expected to safely remove hair; and

(6) list of medications taken by the client that should be reported to the consulting physician before LHR services are provided or that, if taken by the client, preclude a LHR procedure from being performed.

(g) The requirements in this section do not relieve a consulting physician or another health care professional from complying with applicable regulations prescribed by a state or federal agency.

§118.61.Consulting Physician--Audits of LHR Facility Protocols and Operations.

(a) The consulting physician shall conduct audits of the registrant's LHR facility to ensure that operations are being conducted in accordance with the protocols established by the contract specified in §118.30.

(b) The audits shall be unannounced, shall be conducted at the physical site of the LHR facility, and shall be conducted at least quarterly.

(c) The audits may be scheduled in advance if the consulting physician determines that advance notice does not compromise the ability to determine that operations are being conducted in accordance with established protocols.

(d) The audits may be conducted by the consulting physician, another designated physician or an advanced practice nurse or physician's assistant acting under the consulting physician's delegated authority.

(e) If the audit is conducted by an advanced practice nurse or physician's assistant, the consulting physician shall sign the audit.

(f) The consulting physician shall make records of audits conducted under the terms of the contract and maintain those records in accordance with the requirements of this chapter. The consulting physician audit records shall be maintained in accordance with this chapter.

(g) The record of the audit shall include at least the following:

(1) date audit was performed;

(2) name of the LHR facility audited;

(3) assessment of the LHR facility's performance of the protocols established by the written contract; and

(4) signature of the consulting physician, the LHR facility operator, and any other designated physician or advanced practice nurse or physician's assistant acting under the consulting physician's delegated authority to conduct the audit.

§118.70.Laser Hair Removal Devices--General and Operating Requirements.

(a) No person shall make, sell, lease, transfer, or lend laser hair removal devices unless such devices, when properly placed in operation and use, meet the applicable requirements of this 22 TAC §289.301.

(b) A LHR device used in a LHR facility shall comply with all applicable federal and state laws and regulations.

(c) A person who adulterates or misbrands a LHR device under Health and Safety Code, §431.111 or §431.112 violates Health and Safety Code, Chapter 431. The Department of State Health Services - Radiation Control Program may investigate a person accused of adulterating or misbranding a LHR device.

(d) A LHR device used by a LHR facility may be purchased either by a physician (such as the consulting physician or other designated physician for emergencies) or by a LHR facility pursuant to a written prescription or other order of a licensed physician in Texas.

(e) A prescription or other order from a licensed physician for the purchase of a LHR device must include at a minimum:

(1) the date of the order's issue;

(2) the name and quantity of the LHR device(s) authorized to be purchased;

(3) the name, address, and telephone number of the registered LHR facility authorized to purchase and own the laser;

(4) the intended use of the device is limited to nonablative laser hair removal;

(5) the name, address, and telephone number of the physician at the physician's usual place of business, legibly printed or stamped;

(6) a statement that the prescription is valid up to twelve (12) months from the date of issue; and

(7) the signature of the authorizing physician.

(f) A LHR device shall not be used for LHR procedures unless:

(1) the LHR device is approved for laser hair removal or reduction by the FDA for that purpose; and

(2) the LHR device is operated only at the settings expected to safely remove hair, in accordance with the manufacturer's instructions and protocols established by the consulting physician in accordance with this chapter and other applicable law regulating devices.

(g) Except as provided by subsection (h), a LHR facility shall have a LHR professional or a licensed health professional present to provide supervision of the LHR procedures performed at the facility during the facility's operating hours.

(h) A LHR facility may continue to perform LHR procedures after the facility's LHR professional leaves the facility or is continuously absent for up to forty-four (44) days if a senior LHR technician is present to perform or directly supervise each procedure. Not later than the 45th day after the date the facility's LHR professional leaves or is continuously absent from the facility:

(1) the facility's senior LHR technician shall become certified as a LHR professional in accordance with this chapter; or

(2) the facility shall hire a new LHR professional.

(i) Individuals operating each laser presently being used or listed on the current inventory, shall be provided with written instructions for safe use, including clear warnings and precautions to be taken when using the LHR device.

(j) Each individual receiving the instructions shall document that they have read and understand the instructions. The instructions and the documentation that each individual has read and understands the instructions shall be maintained in accordance with this chapter.

(k) A controlled area shall be established within a room in which LHR devices are used and the LHR devices should be secure from unauthorized removal.

(l) Each LHR device shall incorporate a key-actuated or computer-actuated master control. The key shall be removable and the LHR device shall not be operable when the key is removed. When the LHR device is not being prepared for operation or is unattended, the controlled area shall be secured to prevent unauthorized access.

(m) Protective eyewear shall be worn by all individuals using a LHR device or all individual present, including clients, in the room where a LHR device is being used. Protective eyewear devices shall meet the following requirements:

(1) provide a comfortable and appropriate fit all around the area of the eye;

(2) be in proper condition to ensure the optical filter(s) and frame provide the required optical density or greater at the desired wavelengths, and retain all protective properties during its use;

(3) be suitable for the specific wavelength of the laser and be of optical density adequate for the energy involved;

(4) have the optical density or densities and associated wavelength(s) permanently labeled on the filters or eyewear; and

(5) be examined, at intervals not to exceed twelve (12) months, to ensure the reliability of the protective filters and integrity of the protective filter frames. Unreliable eyewear shall be discarded. Documentation of the examination shall be made and maintained in accordance with this chapter.

(n) Each client shall be provided with a written statement outlining the relevant risks associated with LHR procedures, including a warning that failure to use the eye protection provided to the client by the LHR facility may result in damage to the eyes.

(o) Compliance with the written statement requirement specified in subsection (n), does not affect the liability of the LHR facility operator or a manufacturer of a LHR device.

(p) Each certified individual shall display the certificate of LHR registration issued in accordance with this chapter in an open public area of the LHR facility. Copies of an individual's certification document may be made for display in multiple facilities.

(q) A warning sign shall be posted in a conspicuous location that is readily visible to a person entering the LHR facility. The warning sign shall meet the following requirements:

(1) be of a size with dimensions at least 8 and 1/2 inches by 11 inches;

(2) contain wording with a font size no smaller than size 26;

(3) contain at least the following wording:

(A) Laser hair removal devices emit electromagnetic radiation that is considered to be an acute hazard to the skin and eyes from direct and scattered radiation. Laser hair removal procedures provide no medical benefit and may result in adverse effects.

(B) To make a complaint, contact the Texas Department of Licensing and Regulation, Laser Hair Removal Program at P.O. Box 12157, Austin, Texas 78711, (512) 539-5600, or www.tdlr.texas.gov.

(r) The LHR controlled area shall be conspicuously posted with signs or labels as designated by the following:

(1) Title 21, CFR, §1040.10;

(2) ANSI Z136.1-2000, Safe Use of Lasers; and

(3) IEC standards 60825-1 and 60601-2-22.

(s) Records shall be made of each audit conducted. The records shall be maintained in accordance this chapter. The records shall include, but not be limited to, the following:

(1) name of the LHR professional;

(2) name(s) of the individual(s) being audited; and

(3) date of the procedure.

(t) Records shall be made of each LHR procedure and maintained in accordance with this chapter for inspection by the agency. Each record shall include, but not be limited to, the following:

(1) client identification;

(2) date of the LHR procedure;

(3) indication that the client was given the notification;

(4) name of the individual performing the LHR procedure;

(5) type of individual LHR certificate possessed by the individual performing the LHR procedure;

(6) name of the senior LHR technician or LHR professional providing direct supervision, if applicable; and

(7) manufacturer, model number, and serial number of the LHR device and the settings used to perform the procedure.

(u) Each person registered by the department for use of LHR devices in accordance with this chapter shall confine use and possession of the LHR devices to the location and purpose authorized in the facility certificate of LHR registration. If a LHR facility operator owns multiple LHR facilities, the operator may transfer a LHR device from facility to facility that the operator owns if each facility is registered.

§118.71.Laser Hair Removal Devices--Stolen, Lost, or Missing.

(a) Each person registered by the department shall report to the Department of State Health Services - Radiation Control Program a stolen, lost, or missing LHR device within seventy-two (72) hours after its occurrence becomes known to the registrant.

(b) Each person required to make a report shall, within thirty (30) days after making the initial report, make a written report to the Department of State Health Services - Rational Control Program that includes the following information:

(1) a description of the LHR device involved, including the manufacturer, model, serial number, and class;

(2) a description of the circumstances under which the loss or theft occurred;

(3) a statement of disposition, or probable disposition, of the LHR device involved;

(4) actions that have been taken, or will be taken, to recover the LHR device; and

(5) procedures or measures that have been taken to prevent the loss or theft of LHR devices in the future.

(c) After filing the written report, the registrant shall also report additional substantive information on the loss or theft within thirty (30) days after the registrant learns of such information.

§118.80.Fees.

(a) All fees paid to the department are non-refundable.

(b) The two-year initial certification fee and two-year renewal fee for a facility certificate of LHR registration is $1,260.

(c) The two-year initial certification fees and two-year renewal fees for individual LHR certificates are as follows:

(1) LHR professional--$150;

(2) senior LHR technician--$100;

(3) LHR technician--$70; and

(4) LHR apprentice-in-training--$50.

(d) A duplicate/replacement fee for registrations and certificates issued under this chapter are $25.

(e) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

(f) A dishonored/returned check or payment fee is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

(g) Late renewal fees for registrations and certificates issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

§118.90.Administrative Penalties and Sanctions.

If an individual or entity violates any provision of Texas Occupations Code, Chapters 51 or Texas Health and Safety Code Chapter 401, Subchapter M, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 51 and Texas Health and Safety Code Chapter 401, Subchapter M and any associated rules.

§118.91.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapters 51 and Texas Health and Safety Code Chapter 401, Subchapter M and any associated rules may be used to enforce Texas Health and Safety Code Chapter 401, Subchapter M and this chapter.

§118.100.Records Retention Requirements.

All records required by this chapter shall be properly maintained in accordance to the following time requirements for records keeping:

(1) Retain for Three Years:

(A) Audits (§118.61);

(B) Inventory (§118.31);

(C) Instruction to Individuals (§118.70);

(D) Protective Eyewear Examination (§118.70); and

(E) LHR Procedures Performed (§118.70).

(2) Retain until termination or expiration of Certificate of LHR Registration receipts, transfers, and disposals (§118.31).

§118.110.Disclosures and Confidentiality Requirements.

(a) Except as provided by subsection (b), the registrant or any other person may not disclose a client record required to be kept by the department, the Department of State Health Services, or another authorized agency.

(b) The registrant or any other person may disclose a client record if:

(1) the client or a person authorized to act on behalf of the client requests the record;

(2) the department, the Texas Medical Board, a health authority, or an authorized agency requests the record;

(3) the client consents in writing to disclosure of the record to another person;

(4) the client is a victim, witness, or defendant in a criminal proceeding and the record is relevant to that proceeding;

(5) the record is requested in a criminal or civil proceeding by court order or subpoena; or

(6) disclosure is otherwise prohibited by law.

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 April 6, 2017.

TRD-201701457

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179


CHAPTER 119. SANITARIANS

16 TAC §§119.1 - 119.3, 119.10 - 119.15, 119.20, 119.21, 119.23, 119.24, 119.26, 119.27, 119.70, 119.80, 119.90, 119.95

The Texas Department of Licensing and Regulation (Department) proposes new rules at 16 Texas Administrative Code (TAC), Chapter 119, §§119.1 - 119.3, 119.10 - 119.15, 119.20, 119.21, 119.23, 119.24, 119.26, 119.27, 119.70, 119.80, 119.90 and 119.95, regarding the Sanitarians program.

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the Department of State Health Services (DSHS) to the Texas Commission of Licensing and Regulation (Commission) and the Department. The Commission and Department completed the Phase 1 transition of seven programs on October 3, 2016.

Under Phase 2, the following six programs are being transferred from DSHS to the Commission and the Department: (1) Laser Hair Removal, Texas Health and Safety Code, Chapter 401, §§401.501 - 401.522; (2) Massage Therapy, Texas Occupations Code, Chapter 455; (3) Code Enforcement Officers, Texas Occupations Code, Chapter 1952; (4) Sanitarians, Texas Occupations Code, Chapter 1953; (5) Mold Assessors and Remediators, Texas Occupations Code, Chapter 1958; and (6) Offender Education Programs, Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). The statutory amendments transferring regulation of these six Phase 2 programs from DSHS to the Commission and the Department will take effect on September 1, 2017.

The new rules are proposed to enable the Commission and the Department to regulate the six Phase 2 programs listed above. The proposed new rules provide for the Department to perform the various functions, including licensing, compliance, and enforcement, necessary to regulate these transferred programs. The anticipated effective date of the proposed rules is November 1, 2017. The effective date will coincide with the completion of the transfer of the programs to the Commission and the Department.

The proposed new rules under 16 TAC Chapter 119 are necessary to implement S.B. 202 and to regulate the Sanitarians program under the authority of the Commission and the Department. These proposed new rules are separate from and are not to be confused with the DSHS rules located at 25 TAC Chapter 140, Subchapter C, regarding the Sanitarians program, which are still in effect.

The Department held public summits on March 6, 2017, in Arlington, Texas; March 8, 2017, in Houston, Texas; and March 10, 2017, in Austin, Texas, to get initial feedback on a draft of the proposed rules prior to publication of the proposed rules in the Texas Register.

The proposed new §119.1 provides the statutory authority for the Commission and the Department to regulate sanitarians.

The proposed new §119.2 creates the definitions to be used in the sanitarians program.

The proposed new §119.3 establishes the scope of practice for sanitarians.

The proposed new §119.10 creates an advisory committee and its composition.

The proposed new §119.11 establishes the advisory committee officers.

The proposed new §119.12 provides for the duties of the advisory committee.

The proposed new §119.13 details the terms and vacancies for the committee.

The proposed new §119.14 explains when the advisory committee shall meet.

The proposed new §119.15 details the reimbursement guidelines for the advisory committee.

The proposed new §119.20 establishes general eligibility requirements for applicants seeking registration.

The proposed new §119.21 details the registration requirements for the sanitarian program.

The proposed new §119.23 explains the educational requirements necessary to obtain registration.

The proposed new §119.24 establishes the examination requirement.

The proposed new §119.26 creates the registration renewal requirements.

The proposed new §119.27 establishes the continuing education requirements.

The proposed new §119.70 establishes standards of conduct for the sanitarians program.

The proposed new §119.80 establishes fees for the sanitarians program.

The proposed new §119.90 allows for administrative penalties and sanctions.

The proposed new §119.95 provides the authority to enforce Texas Occupations Code, Chapter 1953 and this chapter.

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed new rules are in effect there will be no additional estimated costs or reductions in costs to the State or local government as a result of enforcing or administering these rules. There will be no estimated increase in revenue as a result of these proposed rules. However, several fees changes are being proposed. The registration renewal fee for sanitarians-in-training is proposed for reduction from $150 to $125. The registration renewal fee for sanitarians is proposed for reduction from $150 to $140. The processing fee for upgrading from sanitarian-in-training to sanitarian is proposed for reduction from $90 to $25. Also, the fee for a Criminal History Evaluation Letter is proposed for reduction from $50 to $25. Therefore, the Department estimates a decrease in state revenue of $9,495 per fiscal year for the first five years the rules are in effect. The proposed rules also allow for the Department's standard program fees to include a dishonored payment device fee of $50 and a duplicate license fee of $25. The Department does not anticipate a significant increase of revenue as a result of these fees because they are discretionary based on the needs and actions of licensees. Additionally, there is no estimated loss or increase in revenue to local government as a result of the proposed rules.

Mr. Francis also has determined that for each year of the first five-year period the proposed new rules are in effect, the public benefit will include that the rules implement the statutory requirements under the authority of the Commission and the Department and they provide details that are not found in the enabling acts. The rules also have been formatted and organized to assist the public, the regulated community, and the Department in easily finding specific rules. In addition, the new rules are streamlined so as not to duplicate provisions that are already located in the statutes and rules of the Commission and Department in Texas Occupations Code, Chapter 51 and in 16 TAC Chapter 60, which apply to all programs regulated by the Commission and the Department. The proposed rules provide for the effective and efficient regulation of professional sanitarians, which enhances the public health, safety, and welfare.

There will be no adverse effect on small or micro-businesses as a result of the proposed new rules. There are no anticipated economic costs to persons who are required to comply with the proposed new rules. The above mentioned standard program fees are discretionary and will not constitute a burden considering a minimal number of licensees might need to pay them based on the needs and actions of the individuals and licensees.

Since the agency has determined that the proposed new rules will have no adverse economic effect on small or micro-businesses, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, under Texas Government Code §2006.002, is not required.

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032; or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The new rules are proposed under Texas Occupations Code, Chapters 51 and 1953, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 1953. No other statutes, articles, or codes are affected by the proposal.

§119.1.Authority.

This chapter is promulgated under the authority of the Texas Occupations Code, Chapters 51 and 1953.

§119.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings.

(1) Act--Occupations Code, Chapter 1953, concerning the registration of sanitarians.

(2) Advanced mathematics--A mathematics course equivalent to or beyond calculus that was taken at an accredited college or university.

(3) Advisory Committee--The name of the advisory board shall be the Registered Sanitarian Advisory Committee.

(4) Applicant--A person who applies for registration under the Act.

(5) Applied science--The application of general principles from environmental science, agricultural science, public health, epidemiology, food science, medical science, and sanitary engineering to solve problems.

(6) Basic science--Science such as anatomy, bacteriology, biochemistry, biology, chemistry, geology, microbiology, pathology, physiology and physics.

(7) Consumer health--The application of scientific knowledge to recognize, evaluate, and control hazards associated with the distribution of contaminated, adulterated, unsafe, and misbranded foods, drugs, medical devices, cosmetics, toys, or consumer products.

(8) Continuing education hour--Fifty minutes of continuing education training or experience, applicable to consumer health, environmental health or sanitation, and pre-approved by the department or its designee.

(9) Commission--The Texas Commission of Licensing and Regulation.

(10) Department--The Texas Department of Licensing and Regulation.

(11) Environmental health or sanitation--The application of scientific knowledge to recognize, evaluate, and control environmental hazards and to preserve and improve environmental factors for the achievement of the health, safety, comfort, and well-being of humans, to include disaster preparedness and response to suspected or known acts of bioterrorism.

(12) Executive Director--The executive director of the Texas Department of Licensing and Regulation.

(13) Experience--Two years of full-time experience in the fields of consumer health, environmental health, or sanitation.

(14) Full-time experience--Employment, self-employment, or independent contracting for thirty-two hours or more per week in the practice of consumer health, environmental health or sanitation.

(15) Natural science--Branches of science such as physics, chemistry and biology that deal with matter, energy, and their interrelations and transformations, or with objectively measurable phenomena.

(16) Registered sanitarian--A department registered public health professional qualified by specific education, specialized training and field experience to protect the health, safety, and general welfare of the public from adverse environmental determinants.

(17) Registrant--A person registered under the Act.

(18) Sanitarian in training--A person registered in accordance with §119.21(b).

§119.3.Scope of Practice.

(a) This chapter implements Occupations Code, Chapter 1953, which requires the Texas Commission of Licensing and Regulation to adopt rules to implement a program for the registration of sanitarians.

(b) These sections apply to persons whose duties in consumer health require the application of scientific knowledge to recognize, evaluate, and control hazards associated with the distribution of contaminated, adulterated, unsafe and misbranded foods, drugs, medical devices, and cosmetics and to persons whose duties in environmental health or sanitation require the application of scientific knowledge to recognize, evaluate, and control environmental hazards and to preserve and improve environmental factors for the achievement of the health, safety, comfort, and well-being of humans.

§119.10.The Advisory Committee.

(a) An advisory committee may be appointed under and governed by this section. The committee is established under Texas Occupations Code, §1953.0512, which allows the department to establish an advisory committee.

(b) The committee is subject to the Government Code, Chapter 2110, concerning state agency advisory boards.

(c) The committee shall be composed of nine members appointed by the presiding officer of the commission. The composition of the committee shall include:

(1) five registered sanitarians;

(2) one professional engineer, or one on-site sewage facility (OSSF) professional who is not and has never been registered as a sanitarian in Texas;

(3) two consumers, one of which must be a member of an industry or occupation which is regulated either by a city or county environmental health unit or department or equivalent, or by the Department of State Health Services.

(4) one person involved in education in the field of public, consumer, or environmental health sciences

§119.11.Officers.

(a) The presiding officer of the commission shall, with the approval of the commission, designate a member of the committee as the presiding officer of the committee to serve for a term of two years.

(b) The presiding officer of the committee shall preside at all committee meetings at which he or she is in attendance. The presiding officer of the committee may vote on any matter before the committee.

§119.12.Duties.

The committee shall provide advice and recommendations to the department on technical matters relevant to the administration of the Act and this chapter.

§119.13.Terms; Vacancies.

The term of office of each member shall be six years.

(1) Members of the committee serve staggered terms. The terms of three members begin on September 1 of each odd-numbered year.

(2) Members shall serve after expiration of their term until a replacement is appointed.

(3) If a vacancy occurs during a member's term, the presiding officer of the commission, with the commission's approval, shall appoint a replacement who meets the qualifications for the vacant position to serve for the remainder of the term.

(4) A member of the committee may be removed from the committee pursuant to Texas Occupations Code §51.209, Boards; Removal of Board Member.

§119.14.Meetings.

(a) The committee shall meet at the call of the presiding officer of the commission or the executive director.

(b) A quorum of the committee is necessary to conduct official business.

(c) Committee action shall require a majority vote of those members present and voting.

§119.15.Reimbursement.

(a) A committee member serves without compensation but is entitled to reimbursement for actual and necessary expenses incurred in performing duties as a committee member, subject to any applicable limitation on reimbursement provided by the General Appropriations Act.

(b) Expense reimbursements to committee members:

(1) are limited to authorized expenses incurred while traveling to and from committee meetings; and

(2) must be limited to those allowed by the State of Texas Travel Allowance Guide, the department's policies governing employee travel allowances, and the General Appropriations Act.

(c) Expenses can be reimbursed to committee members only when the legislature has specifically appropriated money for that purpose, and only to the extent of the appropriation.

§119.20.Eligibility Requirements.

An applicant for registration must submit all required information on department-approved forms and provide:

(1) an official transcript from an accredited college or university showing graduation with a bachelor's degree that included 30 semester hours or its equivalent in a basic or applied science;

(2) proof of certification by the National Environmental Health Association (NEHA) as a Registered Environmental Health Specialist/Registered Sanitarian (if certified); and

(3) the required fee.

§119.21.Registration Requirements.

(a) To be eligible for registration as a sanitarian an applicant must have:

(1) graduated with a bachelor's degree from an accredited college or university that included not less than thirty (30) semester hours or its equivalent in a basic or applied science;

(2) not less than two years of full-time experience in the fields of consumer health, environmental health or sanitation. Regularly assigned duties must have included consumer health, environmental health or sanitation. The applicant need not have had the title "sanitarian" or "sanitarian in training". The duties may include the following:

(A) regulatory inspections or evaluations of retail food establishments; retail grocery stores; food warehousing facilities; food manufacturing facilities; food service at special events; mobile food service vehicles and facilities; producer dairy farms; dairy product manufacturing facilities; frozen dessert manufacturing facilities; on-site sewage facilities; asbestos abatement processes; mass gathering events; industrial pretreatment processes (sewage); municipal sewage facilities and wastewater plants; public and semi-public swimming pools; child care facilities; long term care facilities; hospitals; correctional facilities; public and private schools; youth camps; and recreational areas for children; radiation hazards, including lasers and microwaves; and private and public water systems;

(B) site evaluation and design of on-site sewage system facilities as specified in Texas Commission on Environmental Quality rules;

(C) Hazard Analysis and Critical Control Point (HACCP) systems or processes;

(D) investigation of food borne illnesses; water borne illnesses; vector borne illnesses; zoonotic illnesses; food product contamination or adulteration; the environmental conditions surrounding reported elevated blood lead in children and adults; consumer, governmental agency or industry complaints; and animal bites;

(E) performance of vector control activities related to mosquitoes, flies and rodents; environmental assessments; code enforcement activities; and food handler or certified food service manager training;

(F) first responder to hazardous material spills and incidents; and natural and man-made disasters; or

(G) regulatory review of plans and specifications for food establishments; plans and specifications for public, semi-public and private swimming pools; and plans and specifications for on-site sewage systems facilities;

(3) passed the registration examination;

(4) submitted the completed department-approved application;

(5) submitted the required fees; and

(6) successfully pass a criminal history background check performed by the department.

(b) To be eligible for registration as a sanitarian in training an applicant must have:

(1) graduated with a bachelor's degree from an accredited college or university that included not less than thirty (30) semester hours or its equivalent in a basic or applied science;

(2) passed the registration examination;

(3) submitted the completed department-approved application;

(4) submitted the required fees; and

(5) successfully pass a criminal history background check performed by the department.

(c) A registered sanitarian in training who has obtained the necessary experience to qualify as a sanitarian may file an application to upgrade a registration to that of sanitarian. Upon payment of the required upgrade fee and approval by the department, the applicant shall be granted registration as a sanitarian.

§119.23.Educational Requirements.

(a) To qualify for examination, an applicant must successfully complete courses in the following subjects:

(1) air pollution;

(2) anatomy;

(3) animal science;

(4) bacteriology;

(5) biochemistry;

(6) biology;

(7) biomedical science;

(8) biophysics;

(9) biostatistics;

(10) botany;

(11) cell physiology;

(12) chemical engineering;

(13) chemistry;

(14) community health;

(15) computer science;

(16) dairy science;

(17) ecology;

(18) embryology;

(19) entomology;

(20) environmental health;

(21) environmental science;

(22) environmental diseases;

(23) environmental law;

(24) epidemiology;

(25) food bacteriology;

(26) food science;

(27) food technology;

(28) genetics;

(29) geophysics;

(30) geology;

(31) hazardous waste;

(32) histology;

(33) hydrogeology;

(34) hydrology;

(35) industrial hygiene;

(36) infectious diseases;

(37) limnology;

(38) mathematics;

(39) courses taken in an accredited allopathic or osteopathic school of medicine;

(40) meteorology;

(41) microbiology;

(42) molecular biology;

(43) occupational health;

(44) occupational safety;

(45) parasitology;

(46) pathology;

(47) physics;

(48) physiology;

(49) plant taxonomy;

(50) public health;

(51) public health education;

(52) public health law;

(53) radiological health;

(54) sanitary engineering;

(55) soil science;

(56) statistics;

(57) toxicology;

(58) vector control;

(59) veterinary medical courses;

(60) veterinary public health;

(61) virology;

(62) wastewater treatment;

(63) water quality; or

(64) zoology.

(b) The courses may be offered by any academic department so long as the course is acceptable.

(c) No more than six hours or the equivalent will be acceptable for courses in:

(1) biophysics;

(2) computer science;

(3) embryology;

(4) mathematics, not including algebra;

(5) accredited allopathic or osteopathic courses;

(6) meteorology;

(7) physics;

(8) public health education;

(9) statistics; and

(10) veterinary medical courses.

(d) Courses considered not acceptable are:

(1) anthropology;

(2) archaeology;

(3) astronomy;

(4) education;

(5) geography;

(6) government;

(7) history;

(8) kinesiology;

(9) languages;

(10) physical education;

(11) psychology; and

(12) sociology.

(e) Courses not listed may be submitted for consideration for acceptance by the department.

§119.24.Examination for Registration.

(a) The department shall review all applications prior to the examination. An applicant who meets the education and experience requirements shall be approved to take the examination.

(b) An applicant meeting the requirements for qualifications for registration as a Sanitarian or a Sanitarian in training who is not currently certified by the National Environmental Health Association (NEHA) as a Registered Environmental Health Specialist/Registered Sanitarian (REHS/RS) shall be approved to take the exam.

(c) The examination shall consist of a written examination prescribed by the department under the supervision of a person or agency designated by the department.

(d) The examination may be administered and graded by:

(1) the department or the department's designee; or

(2) the National Environmental Health Association (NEHA) or designee as a part of the certification process for the REHS/RS.

(e) The department or its designee shall notify each applicant of the results of the examination within thirty (30) days of the date of the examination.

(f) A person taking an examination must comply with the department's examination requirements under Chapter 60, Subchapter E of this title.

§119.26.Registration Renewal.

(a) To renew a registration, an applicant must:

(1) submit a completed department-approved renewal application;

(2) complete the continuing education requirement in §119.27;

(3) submit the required fees; and

(4) successfully pass a criminal history background check performed by the department.

(b) A registrant must renew the registration every two years, as determined by the department. A sanitarian in training may only renew the registration once, for a total of four (4) years.

(c) Each registrant is responsible for renewing the registration before the expiration date and shall not be excused from paying the renewal fee. Failure to receive notification from the department prior to the expiration date of the registration will not excuse the sanitarian from renewing.

(d) Registration Expiration. A registered sanitarian whose registration has expired may not claim to be a sanitarian or sanitarian in training or use the titles "sanitarian" or "sanitarian in training".

§119.27.Continuing Education Requirements.

(a) A registered sanitarian must obtain and show proof of 24 continuing education hours related to the field of consumer health, environmental health, or sanitation taken within the 24 months preceding renewal for a registration issued for a two-year term.

(b) Only the following continuing education activities shall serve as a basis for registration renewal:

(1) approved by the department or its designee in accordance with this section; or

(2) approved by another professional regulatory agency in Texas as acceptable continuing education for registration renewal.

(c) Acceptable continuing education must be provided by one of the following types of sponsors:

(1) a governmental agency;

(2) an accredited college or university;

(3) an association with a membership of 25 or more persons; or

(4) a pre-approved commercial education business.

(d) Government agencies, non-profit organizations, and accredited colleges and universities are pre-approved as sponsors for continuing education when the activity is conducted or sponsored in compliance with these rules and is directly related to environmental health, consumer health, or sanitation.

(e) Continuing education activities conducted by approved sponsors must meet the following criteria:

(1) the activity must have significant educational or practical content to maintain appropriate levels of competency;

(2) the activity must have a record keeping procedure provided by the sponsor which includes a register of who took the course and the number of continuing education hours earned;

(3) the sponsor must include procedures for verifying participant's attendance as well as comprehension of subject matter presented. These procedures may include, but are not limited to, examinations, post-activity questionnaires, field demonstrations, in-class workbooks or handout materials, and/or question and answer periods to assure participant understanding of the subject matter;

(4) the activity must be at least 50 minutes in length of actual instruction time. No credit will be given for time used to promote the sponsor or other non-relevant activities; and

(5) the sponsor must ensure the activity complies with all applicable federal and state laws, including the Americans with Disabilities Act (ADA) requirements for access to activities.

(f) Acceptable continuing education activities in consumer health, environmental health, or sanitation include the following:

(1) conferences;

(2) home-study training modules (including professional journals requiring successful completion of a test document);

(3) lectures;

(4) panel discussions;

(5) seminars;

(6) accredited college or university courses;

(7) video or film presentations with live instruction;

(8) field demonstrations;

(9) teleconferences;

(10) online training; or

(11) other activities approved by the department.

(g) Sponsors must ensure that all continuing education instructors have one of the following credentials or hold one of the following positions:

(1) certification as a registered sanitarian by the department;

(2) instructor at the Texas Engineering Extension Service;

(3) faculty member at an accredited college or university;

(4) employee of the department or the Department of State Health Services; or

(5) teaching or work experience determined by the sponsor to be sufficient.

(h) To obtain department approval to provide approved continuing education, the sponsor must submit:

(1) a completed application on department forms;

(2) the fee prescribed in §119.80; and

(3) any additional information or material requested by the department.

(i) Each approved continuing education sponsor shall be approved for one year from date of approval. Sponsors who wish to continue approval should submit a sponsor approval form and prescribed fee.

(j) Sponsors of approved continuing education activities shall:

(1) at the conclusion of the activity distribute to those registered sanitarians who have successfully completed the activity a certificate of completion which shall include the name of the sponsor, the date and name of the activity, and the continuing education hours earned; and

(2) maintain a copy of the register for five years and provide it to the department upon request.

(k) Each registered sanitarian shall collect and keep certificates of completion from all courses completed. These certificates of completion will be used to document a registered sanitarian's attendance at approved courses. Transcripts showing coursework in environmental or consumer health from an accredited college or university, or written verification of hours approved by the National Environmental Health Association (NEHA) will also be accepted. The department will conduct random audits for compliance with this requirement.

§119.70.Standards of Conduct.

(a) A registrant shall not use advertising that is false, misleading, or deceptive, or advertising that is not readily subject to verification, including advertising that:

(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2) makes a customer/client likely to create an unjustified expectation about the results of a service or procedure;

(3) compares a professional's service with another professional's services unless the comparison can be factually substantiated;

(4) causes confusion or misunderstanding as to the credentials, education, or registration of a professional; or

(5) advertises or represents in the use of a professional name, a title, or professional identification that is expressly or commonly reserved to or used by another profession or professional.

(b) A registrant shall notify each client of the name, mailing address, website, and telephone number of the department for the purpose of directing complaints to the department by providing notification:

(1) on each written contract for services of a registrant;

(2) on a sign prominently displayed in the primary place of business of each registrant; or

(3) in a bill for services provided by a registrant to a client or third party.

§119.80.Fees.

(a) All fees submitted to the department are nonrefundable.

(b) The schedule of fees is as follows:

(1) Initial fee for application and registration:

(A) sanitarian in training--$125;

(B) registered sanitarian--$140.

(2) Registration renewal fee:

(A) sanitarian in training--$125;

(B) registered sanitarian--$140.

(3) Fee to upgrade from a sanitarian in training to a sanitarian--$25.

(4) A duplicate/replacement fee for registration certificate is $25.

(5) Continuing education sponsor approval fee--$100 per sponsor. Pre-approved providers are exempt from this fee.

(6) Late renewal fees for registrations issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(7) A dishonored/returned check or payment fee is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

(8) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

§119.90.Administrative Penalties and Sanctions.

If a person or entity violates any provision of the Texas Occupations Code, Chapters 51 or 1953, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 51 and 1953 and any associated rules.

§119.95.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapters 51 and 1953 and any associated rules may be used to enforce Texas Occupations Code, Chapters 51, 1953, and this chapter.

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 April 6, 2017.

TRD-201701455

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 463-8179