TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 73. ELECTRICIANS

16 TAC §§73.10, 73.20, 73.24, 73.25, 73.80

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 73, §§73.10, 73.20, 73.24, 73.25, and 73.80, regarding the Electricians program.

JUSTIFICATION AND EXPLANATION OF THE RULES

The proposed rules implement changes from House Bill 1698, 85th Legislature, Regular Session (2017), which creates the journeyman industrial electrician license. The proposed rules add a definition, application and renewal fees, continuing education requirements, and address eligibility and waiver of examination requirements for the journeyman industrial electrician license. The proposed rules are necessary to implement House Bill 1698.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §73.10 adds the definition "journeyman industrial electrician".

The proposed amendments to §73.20 require an applicant for the journeyman industrial electrician license to submit documentation proving the required amount of on-the-job-training.

The proposed amendments to §73.24 allow waiver of the examination requirement for journeyman industrial electricians when applicable.

The proposed amendments to §73.25 require four hours of annual continuing education for journeyman industrial electricians.

The proposed amendments to §73.80 create an application and renewal fee for the journeyman industrial electrician license.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules.

Mr. Francis has determined that for each of the first five years the proposed rules are in effect, there will be an increase in revenues to state government as a result of enforcing or administering the proposed rules. The initial and renewal fees for the journeyman industrial electrician license will be $30.00 each. As a result, the Department expects an increase in revenue of $90 for the first fiscal year; $270 for the second fiscal year; $540 for the third; $900 for the fourth; and $1,350 for the fifth fiscal year.

Mr. Francis has determined that for the first five-year period the proposed rules are in effect, there will be no fiscal implications for local governments as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis has also determined that for each year of the first five-year period, the proposed rules are in effect, the public will benefit from a more skilled and qualified labor force in the electrical industry.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, there will be economic costs to persons who desire to become journeyman industrial electricians. An individual wishing to become a certified technician pursuant to the provisions of House Bill 1698 and the proposed rules will be required to pay an application fee of $30 and an annual renewal fee of $30. Additionally, journeyman industrial electricians will be required to obtain four hours of continuing education annually.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules.

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

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. There are exceptions for certain types of rules under §2001.0045(c).

Because the proposed rules are necessary to implement legislation, namely House Bill 1698, the agency is not required to take any further action under Government Code §2001.0045. See Government Code §2001.045(c)(9).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the rule will be in effect, the agency has determined the following:

(1) The proposed rules do not create or eliminate a government program. These proposed rules implement House Bill 1698, which creates the journeyman industrial electrician license within the Department's existing Electrical program.

(2) Implementation of the proposed rules will not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed rules will not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed rules require an increase in fees paid to the agency. House Bill 1698 requires applicants to prove experience requirements and to pass a Department-developed examination. These requirements necessitate an application and renewal fee for the license.

(5) The proposed rules do not create a new regulation.

(6) The proposed rules expand existing regulations by recognizing and implementing the journeyman industrial electrician license.

(7) The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability. Persons wishing to obtain the journeyman industrial electrician license may do so, but are not required to by law.

(8) The proposed rules do not adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Ana Villarreal, Legal Assistant, 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.

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code, Chapters 51 and 1305, 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 1305. No other statutes, articles, or codes are affected by the proposal.

§73.10.Definitions.

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

(1) - (27) (No change.)

(28) Journeyman Industrial Electrician--An individual who engages in electrical work exclusively at a business that operates a chemical plant, petrochemical plant, refinery, natural gas plant, natural gas treating plan, pipeline, or oil and gas exploration and production operation.

§73.20.Licensing Requirements--Applicant and Experience Requirements.

(a) An applicant for a license must submit the required fees with a completed application and the appropriate attachments:

(1) Applicants for Master Electrician, Master Sign Electrician, Journeyman Electrician, Journeyman Sign Electrician, Residential Wireman, Journeyman Lineman, [and] Maintenance Electrician and Journeyman Industrial Electrician licenses must submit documentation proving the required amount of on-the-job-training.

(2) - (4) (No change.)

(b) - (d) (No change.)

§73.24.Licensing Requirements--Waiver of Examination Requirements.

(a) An applicant who is licensed in another state that has entered into a reciprocity agreement with Texas regarding licensure of electricians, sign electricians, journeyman linemen, journeyman industrial electricians [lineman], or residential appliance installers may obtain an equivalent license in Texas without passing the examination, provided that all other licensure requirements are met, as defined by Texas Occupations Code, Chapter 1305.

(b) - (c) (No change.)

§73.25.Continuing Education.

(a) (No change.)

(b) For each renewal, an electrical apprentice, electrical sign apprentice, journeyman electrician, master electrician, journeyman sign electrician, master sign electrician, residential wireman, journeyman lineman, [or] maintenance electrician, or journeyman industrial electrician must complete four hours of continuing education in:

(1) the National Electrical Code, as adopted under Title 8, Occupations Code §1305.101, or the current version of the National Electrical Code, as approved by the National Fire Protection Association (NFPA);

(2) state law and rules that regulate the conduct of licensees; and

(3) safety as defined in the National Fire Protection Association (NFPA) 70E.

(c) - (n) (No change.)

§73.80.Fees.

(a) Application fees:

(1) - (14) (No change.)

(15) Journeyman Industrial Electrician--$30

(b) Renewal fees:

(1) - (13) (No change.)

(14) Journeyman Industrial Electrician--$30

(c) - (e) (No change.)

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 January 22, 2018.

TRD-201800199

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 4, 2018

For further information, please call: (512) 463-3671


CHAPTER 121. LICENSED BEHAVIOR ANALYST AND LICENSED ASSISTANT BEHAVIOR ANALYST

16 TAC §§121.1, 121.10, 121.20 - 121.27, 121.30, 121.50, 121.65 - 121.70, 121.75, 121.80, 121.90, 121.95

The Texas Department of Licensing and Regulation (Department) proposes new rules at 16 Texas Administrative Code (TAC), Chapter 121, §§121.1, 121.10, 121.20 - 121.27, 121.30, 121.50, 121.65 - 121.70, 121.75, 121.80, 121.90 and 121.95, regarding the Licensed Behavior Analyst and Licensed Assistant Behavior Analyst program.

JUSTIFICATION AND EXPLANATION OF THE RULES

Senate Bill 589, 85th Legislature, Regular Session (2017) established Texas Occupations Code, Chapter 506, which requires the Texas Commission of Licensing and Regulation (Commission) and the Department to license and regulate behavior analysts and assistant behavior analysts.

SECTION-BY-SECTION SUMMARY

The proposed new §121.1 provides the citation to the statutory authority.

The proposed new §121.20 provides the requirements for a complete application in the behavior analyst program.

The proposed new §121.21 establishes the licensing requirements for the behavior analyst.

The proposed new §121.22 establishes the licensing requirements for the assistant behavior analyst.

The proposed new §121.23 provides for the examination required for licensure.

The proposed new §121.24 provides the educational requirements for licensure.

The proposed new §121.25 establishes continuing education requirements to maintain licensure.

The proposed new §121.26 details the renewal process and requirements.

The proposed new §121.27 explains the conditions for inactive status for a license.

The proposed new §121.30 provides conditions regarding exemptions for persons not required to comply with this chapter.

The proposed new §121.50 details the reporting requirements for license holders.

The proposed new §121.65 details the composition of the behavior analyst advisory board and the qualifications for membership.

The proposed new §121.66 provides the advisory board duties.

The proposed new §121.67 explains the advisory board member term of service and vacancy information.

The proposed new §121.68 establishes the appointment and duties of the advisory board presiding officer.

The proposed new §121.69 provides the conditions for meetings of the advisory board.

The proposed new §121.70 details responsibilities of license holders.

The proposed new §121.75 creates the code of ethics to which license holders must adhere.

The proposed new §121.80 creates the fees payable in the behavior analyst program.

The proposed new §121.90 explains the basis and guidelines for taking disciplinary action.

The proposed new §121.95 details how license holders must provide complaint information and explains the handling of complaints.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed new rules are in effect there will be a direct cost to the state of $111,420 for the first year; $246,788 for the second year; and $246,148 for each subsequent year. These costs are a result of the Department needing to hire 3.5 additional full time employees to administer the behavior analyst program, and for conducting criminal history background checks.

Mr. Francis has determined that during the first five years the proposed new rules are in effect, the state will receive approximately $493,800 in the first, third, and fifth years, and negligible amounts in other years. The expected revenues result from fees for the initial license and subsequent renewal of licenses every two years in the behavior analysis program.

Enforcing or administering the proposed new rules does not have foreseeable implications relating to cost or revenues of local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed new rules will not affect local economies, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis has also determined that for each year of the first five-years that the proposed new rules are in effect, the public will benefit from effective and efficient regulation of the behavior analyst profession, which enhances public health, safety, and welfare.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for the first five-year period the proposed new rules are in effect, there will be economic costs of a $390 licensing fee and a subsequent renewal fee of $390 for Behavior Analysts, and a $330 licensing fee and a subsequent renewal fee of $330 for Assistant Behavior Analysts who are required to comply with the proposed new rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

The Department estimates that approximately 1,280 persons will be required to become licensed under the new law and rules. It is not known how many of these prospective license holders are operating as small or micro businesses, but the Department estimates that many of them are a small or micro- business or part of one. For those who are operating as small or micro businesses, there will be an adverse economic effect equal to the amount of the licensure fee of $390 for each behavior analyst and $330 for each assistant behavior analyst. There will be an additional economic impact of either $330 or $390 per license every two years at the time of license renewal. The proposed rules have no anticipated adverse economic effect on other small or micro businesses.

The purpose of the new law is to regulate persons practicing behavior analysis through the creation of a licensing program. Alternative ways to regulate behavior analysts and assistant behavior analysts could include certification or registration programs. Such regulatory approaches might create less economic impact on small or micro businesses if fees could be lower. However; the new law mandates the establishment of a licensing program that collects sufficient revenue in fees to cover the cost of operating the program, and the fees have so been established. The required regulatory approach is consistent with the health, safety, and welfare of the state and no other regulatory methods that could reduce economic impacts on small or micro businesses must be analyzed. A Regulatory Flexibility Analysis as detailed under Texas Government Code §2006.002, is not required.

There is no anticipated adverse effect on rural communities as a result of the proposed new rules.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed new rules implement legislation, which is an exception under §2001.0045(c). Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed new rules will be in effect, the agency has determined the following:

(1) The proposed rules do not create a government program. However, S.B. 589 created Texas Occupations Code, Chapter 506, which requires the Commission and the Department to regulate Behavior Analysts and Assistant Behavior Analysts.

(2) Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed rules require an increase in fees paid to the agency by establishing a licensing fee. The fees are necessary to cover the costs of administering the program.

(5) The proposed rules create a new regulation by implementing Texas Occupations Code, Chapter 506. The proposed rules are written so as to require the minimum amount of regulation necessary.

(6) The proposed rules do not expand, limit, or repeal an existing regulation.

(7) The proposed rules newly apply to 1,190 behavior analysts and 90 assistant behavior analysts who are currently certified but who have not been subject to a licensing requirement in Texas.

(8) The proposed rules do not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, 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.

STATUTORY AUTHORITY

The new rules are proposed under Texas Occupations Code, Chapter 51, 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 506. No other statutes, articles, or codes are affected by the proposal.

§121.1.Authority.

This chapter is promulgated under the authority of Texas Occupations Code, Chapters 51 and 506.

§121.10.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 Occupations Code, Chapter 506.

(2) Advertising--The solicitation for business utilizing the titles "licensed behavior analyst" or "licensed assistant behavior analyst."

(3) Advisory Board--The Behavior Analyst Advisory Board.

(4) Applicant--A person who applies for a license to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.

(5) Behavior Analyst Certification Board (BACB)- a certifying entity for persons practicing behavior analysis.

(6) Client--A person who is receiving behavior analysis services from a license holder.

(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 department.

(10) License--A license issued under the Act authorizing a person to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.

(11) License holder--A person who has been issued a license in accordance with the Act to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.

§121.20.Applications.

(a) Unless otherwise indicated, applicants for a license must submit all required information on department-approved forms or in a manner specified by the department.

(b) Applicants must submit the following:

(1) a complete application;

(2) the applicant's certification number by a behavior analyst certifying entity or other documentation of current certification by a behavior analyst certifying entity, as approved by the department; and

(3) the fee required under §121.80.

(c) The department may require an applicant to submit additional information or documentation of an applicant's qualifications, including the following:

(1) official transcripts of all relevant college work or educational programs demonstrating successful completion and degrees earned as applicable to the requirements under the Act and §121.21 and §121.22;

(2) experience in behavior analysis;

(3) applicable training;

(4) qualifications to provide supervision in behavior analysis to unlicensed persons or to behavior analysis license holders;

(5) behavior analysis supervision experience provided or received;

(6) certifications of individuals providing or receiving supervision;

(7) supervision contracts or supervision agreements, or terms of employment;

(8) successful completion of applicable examination requirements, including a pass/fail report;

(9) information regarding other state licenses, certifications; or registrations that an applicant holds or held in behavior analysis or a related field;

(10) information about pending or concluded disciplinary actions against the applicant by the certifying entity; or

(11) any other documents or information including documents or information related to the applicant's certification, continuing education, employment, or criminal history.

(d) The applicant must successfully pass a criminal history background check.

(e) An applicant shall not submit to the department any examination-related materials or information, including examination questions, specifications, forms, or scoring sheets, except as provided in subsection (c)(8).

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

(g) Licenses are valid for two years from the date of issuance.

§121.21.Behavior Analyst Licensing Requirements.

(a) To qualify for licensure as a behavior analyst, a person must:

(1) hold current certification as a Board Certified Behavior Analyst or a Board Certified Behavior Analyst-Doctoral or equivalent, issued by the Behavior Analyst Certification Board or its equivalent as approved by the department; and

(2) be in compliance with all professional, ethical, and disciplinary standards established by the certifying entity.

(b) Persons who are subject to or have received a disciplinary action by the certifying entity may be ineligible for a license.

(c) Persons who hold current certification by the certifying entity but who do not hold a current license may not:

(1) practice behavior analysis; or

(2) use the title "licensed behavior analyst."

§121.22.Assistant Behavior Analyst Licensing Requirements.

(a) To qualify for licensure as an assistant behavior analyst, a person must:

(1) hold current certification as a Board Certified Assistant Behavior Analyst or equivalent, issued by the Behavior Analyst Certification Board or its equivalent as approved by the department;

(2) be in compliance with all professional, ethical, and disciplinary standards established by the certifying entity; and

(3) be in compliance with the applicable supervision requirements of the certifying body at all times when practicing behavior therapy.

(b) Persons who are subject to or have received a disciplinary action by the certifying entity may be ineligible for a license.

(c) Persons who hold current certification by the certifying entity but who do not hold a current license may not:

(1) practice behavior analysis; or

(2) use the title "licensed assistant behavior analyst."

§121.23.Examination.

(a) The examination designated and approved by the department for licensure as a behavior analyst is the Board Certified Behavior Analyst examination in applied behavior analysis, administered by the Behavior Analyst Certification Board.

(b) The examination designated and approved by the department for licensure as an assistant behavior analyst is the Board Certified Assistant Behavior Analyst examination, administered by the Behavior Analyst Certification Board.

(c) The department may designate and approve an equivalent examination.

(d) The department may impose additional examination requirements.

§121.24.Educational Requirements.

(a) An applicant shall meet the educational requirements of the certifying entity for the Board Certified Behavior Analyst or the Board Certified Behavior Analyst-Doctoral or an equivalent standard of the certifying entity to become qualified to apply for the Behavior Analyst license.

(b) An applicant shall meet the educational requirements of the certifying entity for the Board Certified Assistant Behavior Analyst or an equivalent standard of the certifying entity to become qualified to apply for the Assistant Behavior Analyst license.

§121.25.Continuing Education.

(a) An applicant shall meet the continuing education requirements of the certifying entity, including the continuing education requirements for the Board Certified Behavior Analyst, Board Certified Behavior Analyst-Doctoral, or Board Certified Assistant Behavior Analyst, as applicable, to become qualified to apply for a behavior analysis license.

(b) License holders shall comply with the continuing education requirements imposed by the certifying entity.

(c) License holders shall verify completion of continuing education requirements upon request.

(d) Licenses will be renewed only if continuing education requirements have been met.

§121.26.Renewal.

(a) To renew a license, a license holder must:

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

(2) submit the fee required under §121.80; and

(3) successfully pass a criminal history background check.

(b) Applicants for renewal are subject to §121.20(c).

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

(d) A person whose license has expired may late renew the license in accordance with §60.31 (relating to License Renewal Applications) and §60.83 (relating to Late Renewal Fees) of this title.

(e) A person whose license has expired may not use the title or represent or imply that he or she has the title of 'licensed behavior analyst' or 'licensed assistant behavior analyst' and may not use any facsimile of those titles in any manner.

(f) A person whose certification by the certifying entity is on inactive status may renew a license that is on inactive status if the person is in compliance with the requirements of the certifying entity for inactive status.

(g) A person whose certification by the certifying entity is on inactive status may not renew a license that is on active status.

(h) The department may not renew the license of a license holder who is in violation of the Act or commission rules at the time of application for renewal.

§121.27.Inactive Status.

(a) To change a license to inactive status, an applicant must submit a complete application on a department-approved form.

(b) A person whose license is on inactive status may not:

(1) practice applied behavior analysis;

(2) engage in any activity for which a license is required;

(3) participate in a supervision relationship with another license holder or unlicensed person unless an active license is not required for the license holder's activity; or

(4) engage in any activity for which the person is required to be actively licensed for the interests of another person also engaged in that activity with the license holder.

(c) A person whose license is on inactive status must comply with the certifying entity's requirements for the applicable certification during the time the license is on inactive status, or must become recertified before applying to change the license to active status.

(d) A license on inactive status may be renewed in accordance with §121.26.

(e) To change from an inactive license status to an active license status, a person must:

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

(2) pay the fee required under §121.80(b)(6); and

(3) successfully pass a criminal history background check.

§121.30.Exemptions.

(a) A person's certification status by a certifying entity does not affect the applicability of the Act to that person's activities under §§506.051 - 506.059 of the Act.

(b) Persons who are providing services for which a license is required under the Act or this chapter but who are not certified by a certifying entity may be required to become certified and obtain a license under this chapter in order to continue to provide services.

§121.50.Reporting Requirements.

(a) License holders shall report the following to the department in the manner specified by the department not later than ten days after the action, activity, change, or event occurs; the license holder has been notified; the action becomes final; or a decision, order, or judgment issues:

(1) Expiration of the license holder's certification;

(2) Surrender or voluntary termination of the license holder's certification;

(3) A violation by the license holder of the certifying entity's requirements, the Act, or this chapter;

(4) Suspension, probation, reprimand, or any other discipline or revocation of the license holder's certification;

(5) The license holder's arrest, deferred adjudication, or criminal conviction, other than a Class C misdemeanor traffic offense;

(6) The filing of a criminal case against the license holder;

(7) The settlement of or judgment rendered in a civil lawsuit filed against the license holder and relating to the license holder's professional behavior analysis practice;

(8) Complaints, investigations, or actions against the license holder by a governmental agency or by a licensing or certification body;

(9) Initiation of disciplinary action or other proceedings against the license holder by an employer or other entity that may result in civil liability or criminal charges, or that may result in disqualification for certification by the certifying entity in accordance with the certifying entity's requirements;

(10) Commencement of inactive status of the person's certification by the certifying entity; or

(11) Any other limitation on, or termination of, the license holder's certification.

(b) License holders shall report the following to the department in the manner specified by the department not later than thirty days after the action, activity, change, or event occurs; the license holder has been notified; or the action becomes final:

(1) Initiation of disciplinary action against the license holder by a behavior analyst certifying entity; or

(2) Changes in name, mailing address, phone number, or email contact.

§121.65.Behavior Analyst Advisory Board; Membership.

(a) The Behavior Analyst Advisory Board shall be appointed under and governed by the Act and this section. The advisory board is established under the authority of Occupations Code, §506.101.

(b) The advisory board is subject to Government Code, Chapter 2110, concerning state agency advisory boards.

(c) The advisory board shall be composed of nine members appointed by the presiding officer of the commission with the approval of the commission. The composition of the advisory board shall include:

(1) four licensed behavior analysts, at least one of whom must be certified as a Board Certified Behavior Analyst--Doctoral or hold an equivalent certification issued by the certifying entity;

(2) one licensed assistant behavior analyst;

(3) one physician who has experience providing mental health or behavioral health services; and

(4) three members who represent the public and who are either former recipients of applied behavior analysis services or the parent or guardian of a current or former recipient of applied behavior analysis services.

(d) To be qualified for appointment to the advisory board in the position of licensed behavior analyst, a person must have at least five years of experience as a licensed behavior analyst after being certified by the certifying entity.

§121.66.Advisory Board: Duties.

The advisory board shall provide advice and recommendations to the department on technical matters relevant to the administration of the Act and this chapter.

§121.67.Advisory Board: Terms; Vacancies.

(a) The term of office of each member of the advisory board shall be six years. Members shall serve after expiration of their term until a replacement is appointed.

(b) A member of the advisory board may be removed from the advisory board pursuant to Texas Occupations Code §51.209, Advisory Boards; Removal of Advisory Board Member.

(c) Grounds for removal include any action by the certifying entity that suspends or terminates the certification of the member; the expiration of the member's certification; the change of the certification from active to inactive status; or the voluntary surrender of certification by the member.

§121.68.Advisory Board: Officers.

(a) The presiding officer of the commission shall designate a member of the advisory board as the presiding officer of the advisory board to serve for a term of one year.

(b) The presiding officer of the advisory board shall preside at all advisory board meetings at which he or she is in attendance. The presiding officer of the advisory board may vote on any matter before the advisory board.

§121.69.Advisory Board: Meetings.

(a) The advisory board shall meet at least twice each year and at the call of the presiding officer of the commission or the executive director.

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

(c) A quorum of the advisory board is necessary to conduct official business. A quorum is five members.

(d) Advisory board action shall require a majority vote of those members present and voting.

§121.70.Responsibilities of License Holders.

(a) Licenses issued by the department remain the property of the department and shall be surrendered to the department on demand.

(b) A license holder shall:

(1) inform the department of any violations of this chapter or the Act.

(2) promptly provide upon request any documents or information satisfactory to the department to demonstrate the license holder's qualifications for certification by the certifying entity or for licensure by the department.

(3) report to the department any fact that may affect the license holder's qualifications to hold a certification or license in accordance with §121.50.

(4) notify each client or the minor client's parent or authorized representative of the department's name, website, email address, mailing address, and telephone number for the purpose of directing complaints to the department.

(5) 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.

(6) not interfere with a department investigation or disciplinary proceeding in any way, including by misrepresentation or omission of facts to the department or using threats or harassment against any person.

(7) comply with any order issued by the commission or the executive director that relates to the license holder.

(8) provide a client or a minor client's parent or authorized representative with a written agreement for services prior to the commencement of behavior analysis services.

(A) The agreement shall contain, at a minimum, a description of the services to be provided, goals, techniques, materials, the cost for services, payment arrangements and policies, hours, cancellation and refund policies, contact information for both parties, and the dated signatures of both parties.

(B) Any subsequent modifications to the agreement shall be signed and dated by both parties.

(9) maintain legible and accurate records of behavior analysis services rendered. A license holder practicing in an educational setting, including a school, learning center, or clinic, shall comply with the recordkeeping requirements of the educational setting or with the retention requirements of the certifying entity, if more stringent.

(10) maintain records for a minimum of the longer of:

(A) seven years following the termination of behavior analysis services;

(B) seven years following the date on which a minor client reaches the age of 22; or

(C) the retention period required by the certifying entity.

(11) not delegate any services, functions, or responsibilities requiring professional competence to a person not competent or not properly credentialed. A license holder in private practice is responsible for the services provided by unlicensed persons employed or contracted by the license holder.

(12) display the license in the primary location of practice, but shall not display a license that has been photographically or otherwise reproduced.

(c) If any requirement of a license holder's certifying entity differs in stringency from a requirement of the Act or the commission rules, the more stringent provision shall apply.

(d) If any requirement of a license holder's certifying entity conflicts with a requirement of the commission rules such that the license holder cannot reasonably comply with both requirements, the license holder shall comply with the requirement of the certifying entity.

§121.75.Code of Ethics.

(a) Individuals certified by the BACB are required to comply with the BACB Professional and Ethical Compliance Code for Behavior Analysts.

(1) The department may consult the requirements of the certifying entity or the BACB Professional and Ethical Compliance Code for Behavior Analysts in the application and enforcement of the ethical standards included in this section.

(2) The department will apply the requirements of this section consistent with the requirements, guidance, and interpretations of the certifying entity unless an alternate interpretation is reasonably necessary or required.

(b) License holders shall comply with the following ethical standards when providing behavior analysis services. All license holders shall:

(1) comply with all provisions of the Act and this chapter, as well as any other state or federal law or rule that applies to the provision of behavior analysis services by, or the regulation of the license holder.

(2) provide behavior analysis services without discrimination based on race, color, national origin, religion, gender, age, or disability.

(3) offer to perform or perform only behavior analysis services for which the license holder is qualified and that are within the scope of the license holder's certification, license, or competence, considering level of education, training, and experience.

(4) accurately and truthfully represent his or her education, training, credentials, and competence.

(5) fully and accurately inform clients of the nature and possible outcomes of services rendered.

(6) be knowledgeable of all available information relevant to the behavior analysis services being provided to the client.

(7) take reasonable measures to ensure a safe environment for clients.

(8) maintain objectivity in all matters concerning the welfare of the client.

(9) refrain from participating in inappropriate or exploitative multiple relationships.

(10) not guarantee, directly or by implication, the results of any behavior analysis services, except that a reasonable statement of prognosis may be made. A license holder shall not mislead clients to expect results that cannot be predicted from reliable evidence.

(11) obtain written consent from a client or a minor client's parent or authorized representative in order to use the client's data or information for research or teaching activities.

(12) reveal confidential or personal information about a client only with authorization unless:

(A) required by law or compelled by a court to reveal the information;

(B) required by the certifying entity to reveal the information; or

(C) revealing the information is necessary to protect the welfare of the client or of the community.

(13) document any confidential or personal information disclosed, the person or entity to whom it was disclosed, and the justification for disclosure in the client's record if a license holder reveals such information about a client without authorization.

(14) provide, in plain language, a written explanation of the charges for behavior analysis services previously made on a bill or statement, upon the written request of a client or the minor client's parent or authorized representative.

(15) accurately represent and describe any product created or recommended by the license holder.

(16) not require the purchase by a client of any product created or produced by the license holder.

(17) not use his or her professional relationship with a client to promote any product for personal gain or profit, unless the license holder has disclosed to the client the nature of the license holder's personal gain or profit.

(18) not offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for securing or soliciting clients or patronage.

(19) not persistently or flagrantly overcharge a client or third party.

(20) not persistently or flagrantly over treat a client.

(21) terminate a professional relationship when it is reasonably clear that the client is not benefitting from the services being provided or when it is reasonably clear that the client no longer needs the services.

(22) seek to identify competent, dependable referral sources for clients and shall refer when requested or appropriate.

(23) not sell, barter, or offer to sell or barter a license.

(24) refrain from engaging in sexual contact, including intercourse or kissing, sexual exploitation, or therapeutic deception, with a client. Sexual contact and sexual intercourse mean the activities and behaviors described in Penal Code, §21.01. Sexual exploitation means a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. Therapeutic deception means a representation by a license holder that sexual contact with, or sexual exploitation by, the license holder is consistent with, or part of, the behavior analysis services being provided to the client.

(25) refrain from practicing behavior analysis if, due to illness or use of alcohol, drugs or medications, narcotics, chemicals or other substances, or from mental or physical conditions, the person is incapable of practicing with reasonable skill and safety to clients in the provision of behavior analysis services.

(c) Information used by a license holder in any advertisement or announcement shall not contain information that is false, inaccurate, misleading, incomplete, out of context, deceptive or not readily verifiable. Advertising includes, but is not limited to, any announcement of services, letterhead, business cards, commercial products, and billing statements. False, misleading, or deceptive advertising or advertising 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 professional service;

(3) compares a professional's services with another professional's services unless the comparison can be factually substantiated;

(4) causes confusion or misunderstanding as to the credentials, education, or licensing of a professional;

(5) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of client; or

(6) 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, unless the license holder is licensed or otherwise authorized to use the title or professional identification.

§121.80.Fees.

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

(b) Licensing fees are as follows:

(1) application and initial license, behavior analyst--$390

(2) application and initial license, assistant behavior analyst--$330

(3) renewal, behavior analyst--$390

(4) renewal, assistant behavior analyst--$330

(5) change, active status to inactive status--$0

(6) change, inactive status to active status--$25

(7) renewal of license on inactive status--renewal fees as stated in paragraphs (3) and (4)

(8) license duplicate or replacement--$25

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

(d) The fee for a dishonored/returned check or payment 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).

§121.90.Basis for Disciplinary Action.

(a) This section is authorized under Texas Occupations Code, Chapters 51 and 506.

(1) If a person violates any provision of Texas Occupations Code, Chapters 51, 506, or any other applicable provision, this chapter, or a 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 the Texas Occupations Code and the associated rules.

(2) The enforcement authority granted under Texas Occupations Code, Chapters 51 and 506, and any associated rules may be used to enforce the Texas Occupations Code and this chapter.

(b) The department may consult the requirements of the certifying entity, and the BACB Professional and Ethical Compliance Code for Behavior Analysts, in the application and enforcement of this chapter.

(c) The department will apply the requirements of this section consistent with the requirements, guidance, and interpretations of the certifying entity unless an alternate interpretation is reasonably necessary.

(d) The department may refer or report to a certifying entity information, including complaints, investigations, and violations of Texas law, rules, or orders that are or may be relevant to the qualifications of any person to obtain or maintain a certification.

(e) The commission or the executive director may deny, revoke, suspend, probate, reprimand, or otherwise discipline a license, or impose an administrative penalty, when a person through fraud, misrepresentation, concealment of a material fact, or in violation of the certifying entity's requirements, the Act, or this chapter:

(1) obtains, renews, or maintains a license; or

(2) practices or offers to practice behavior analysis services.

§121.95.Complaints.

(a) The department shall list, with its business telephone number, a toll-free telephone number established to accept complaints relating to a health profession regulated by the department.

(b) A license holder shall notify each client of the name, mailing address, email address, telephone number, and website of the department for the purpose of directing complaints to the department. A license holder shall display this notification:

(1) on a sign prominently displayed in the primary location of practice of each license holder, if any; and

(2) on written documents including a written contract, a bill for service, or information brochure provided by the license holder to a client or third party.

(c) A license holder shall display the license certificate with a current license card as issued by the department in the primary location of practice, if any.

(d) A license holder shall not make any alteration on official documents issued by the department.

(e) All information and materials subpoenaed or compiled by the department in connection with a complaint and investigation under this chapter are confidential in accordance with §506.202 of the Act.

(f) The department may disclose a complaint or investigation and all information and materials compiled by the department in connection with the complaint or investigation to a person's certifying entity in accordance with §506.202 of the Act.

(g) For purposes of this chapter, a health profession is a profession for which the enabling statute is located in Title 3, Occupations Code, or that is determined to be a health profession under other 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 January 18, 2018.

TRD-201800171

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 4, 2018

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


CHAPTER 145. SANITARIANS

16 TAC §§145.1 - 145.21

The Texas Department of Licensing and Regulation (Department) proposes the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 145, §§145.1 - 145.21, regarding the Sanitarians program.

JUSTIFICATION AND EXPLANATION OF THE RULES

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 were 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 took effect on September 1, 2017.

On August 18, 2017, the Commission adopted its own set of rules for the Sanitarians program located at 16 TAC Chapter 119. The Commission's rules were effective November 1, 2017, (42 TexReg 4643). The Department officially commenced all regulatory functions for the Sanitarians program on November 1, 2017.

The current 16 TAC Chapter 145 rules were transferred from DSHS to be repealed to eliminate possible industry and public confusion (42 TexReg 6202). These rules were formerly located at 25 TAC Chapter 140, Subchapter C. The proposed repeal is necessary to complete the implementation of S.B. 202.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §§145.1 - 145.21 eliminates possible industry and public confusion by removing duplicate, obsolete, and inactive rules for the Sanitarians program.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed repeal is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 119 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government costs.

Mr. Francis has determined that for each year of the first five years the proposed repeal is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 119 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government revenues.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed repeal will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. 16 TAC Chapter 119 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on the local economy.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed repeal is in effect, the public will benefit from the elimination of duplicate, obsolete, and inactive rules and the elimination of confusion that would result from having two sets of rules for the Sanitarians program in Chapter 16 of the Texas Administrative Code.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed repeal is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeal. 16 TAC Chapter 119 has been implemented and therefore the rules in the proposed repeal are obsolete and have no economic costs to persons who are required to comply with the rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal. 16 TAC Chapter 119 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on small businesses, micro-businesses, or rural communities.

Since the agency has determined that the proposed repeal will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed repeal does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed repeal. For the first five years the proposed repeal will be in effect, the agency has determined the following:

(1) The proposed repeal does not create or eliminate a government program.

(2) Implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed repeal does not require an increase or decrease in fees paid to the agency.

(5) The proposed repeal does not create a new regulation.

(6) The proposed repeal does repeal an existing regulation. The transferred rules from DSHS are proposed for repeal because they are duplicative, obsolete, and inactive.

(7) The proposed repeal does not increase or decrease the number of individuals subject to the rule's applicability.

(8) The proposed repeal does not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, 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.

STATUTORY AUTHORITY

The repeal is 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.

§145.1.Purpose and Scope.

§145.2.Definitions.

§145.3.Fees.

§145.4.Application Procedures.

§145.5.Qualifications for Registration as a Sanitarian or a Sanitarian-in-Training.

§145.6.Educational Requirements.

§145.7.Examinations.

§145.8.Application Approval or Disapproval.

§145.9.Processing Applications.

§145.10.Sanitarian Registration Procedures.

§145.11.Sanitarian Registration Renewal.

§145.12.Exemption from Renewal and Continuing Education for Retired Professional Sanitarians.

§145.13.Continuing Education Requirements.

§145.14.Exemptions.

§145.15.Registration of Persons with Criminal Backgrounds.

§145.16.Grounds for Denial, Suspension or Revocation.

§145.17.Advertising.

§145.18.Violations, Complaints, Investigations, and Disciplinary Actions.

§145.19.Registered Sanitarian Advisory Committee.

§145.20.Request for Criminal History Evaluation Letter.

§145.21.Registration of Military Service Members, Military Veterans, and Military Spouses.

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 January 18, 2018.

TRD-201800172

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 4, 2018

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


CHAPTER 146. CODE ENFORCEMENT OFFICERS

16 TAC §§146.1 - 146.20

The Texas Department of Licensing and Regulation (Department) proposes the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 146, §§146.1 - 146.20, regarding the Code Enforcement Officers program.

JUSTIFICATION AND EXPLANATION OF THE RULES

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 were 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, Sections §§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 took effect on September 1, 2017.

On August 18, 2017, the Commission adopted its own set of rules for the Code Enforcement Officers program located at 16 TAC Chapter 62. The Commission's rules were effective November 1, 2017, (42 TexReg 4615). The Department officially commenced all regulatory functions for the Code Enforcement Officers program on November 1, 2017.

The current 16 TAC Chapter 146 rules were transferred from DSHS to be repealed to eliminate possible industry and public confusion (42 TexReg 6202). These rules were formerly located at 25 TAC Chapter 140, Subchapter D. The proposed repeal is necessary to complete the implementation of S.B. 202.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §§146.1 - 146.20 eliminates possible industry and public confusion by removing duplicate and inactive rules for the Code Enforcement Officers program.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed repeal is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 62 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government costs.

Mr. Francis has determined that for each year of the first five years the proposed repeal is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 62 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government revenues.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed repeal will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. 16 TAC Chapter 62 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on the local economy.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed repeal is in effect, the public will benefit from the elimination of duplicate, obsolete, and inactive rules and the elimination of confusion that would result from having two sets of rules for the Code Enforcement Officers program in Chapter 16 of the Texas Administrative Code.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed repeal is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeal. 16 TAC Chapter 62 has been implemented and therefore the rules in the proposed repeal are obsolete and have no economic costs to persons who are required to comply with the rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal. 16 TAC Chapter 62 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on small businesses, micro-businesses, or rural communities.

Since the agency has determined that the proposed repeal will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed repeal does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed repeal. For each year of the first five years the proposed repeal will be in effect, the agency has determined the following:

(1) The proposed repeal does not create or eliminate a government program.

(2) Implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed repeal does not require an increase or decrease in fees paid to the agency.

(5) The proposed repeal does not create a new regulation.

(6) The proposed repeal does repeal an existing regulation. The transferred rules from DSHS are proposed for repeal because they are duplicative, obsolete, and inactive.

(7) The proposed repeal does not increase or decrease the number of individuals subject to the rule's applicability.

(8) The proposed repeal does not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, 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.

STATUTORY AUTHORITY

The repeal is 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.

§146.1.Purpose and Scope.

§146.2.Definitions.

§146.3.Fees.

§146.4.Application Procedures.

§146.5.Registration Qualification Requirements.

§146.6.Educational Requirements.

§146.7.Examinations.

§146.8.Determination of Eligibility.

§146.9.Code Enforcement Officer in Training.

§146.10.Code Enforcement Officer Registration.

§146.11.Code Enforcement Registration Renewal.

§146.12.Grounds for Suspension or Revocation.

§146.13.Registration of Persons with Criminal Backgrounds.

§146.14.Violations, Complaints, Investigations, and Disciplinary Actions.

§146.15.Processing Applications.

§146.16.Exemptions.

§146.17.Advertising.

§146.18.Continuing Education.

§146.19.Request for Criminal History Evaluation Letter.

§146.20.Registration of Military Service Members, Military Veterans, and Military Spouses.

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 January 18, 2018.

TRD-201800173

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 4, 2018

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


CHAPTER 147. MASSAGE THERAPISTS

16 TAC §§147.1 - 147.55

The Texas Department of Licensing and Regulation (Department) proposes the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 147, §§147.1 - 147.55, regarding the Massage Therapy program.

JUSTIFICATION AND EXPLANATION OF THE RULES

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 were 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, Sections §§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 took effect on September 1, 2017.

On August 18, 2017, the Commission adopted its own set of rules for the Massage Therapy program located at 16 TAC Chapter 117. The Commission's rules were effective November 1, 2017, (42 TexReg 4991). The Department officially commenced all regulatory functions for the Massage Therapy program on November 1, 2017.

The current 16 TAC Chapter 147 rules were transferred from DSHS to be repealed to eliminate possible industry and public confusion (42 TexReg 6202). These rules were formerly located at 25 TAC Chapter 140, Subchapter H. The proposed repeal is necessary to complete the implementation of S.B. 202.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §§147.1 - 147.55 eliminates possible industry and public confusion by removing duplicate, obsolete, and inactive rules for the Massage Therapy program.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed repeal is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 117 has been implemented and, therefore, the rules in the proposed repeal are obsolete and have no effect on state or local government costs.

Mr. Francis has determined that for each year of the first five years the proposed repeal is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 117 has been implemented and, therefore, the rules in the proposed repeal are obsolete and have no effect on state or local government revenues.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed repeal will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. 16 TAC Chapter 117 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on the local economy.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed repeal is in effect, the public will benefit from the elimination of duplicate, obsolete, and inactive rules and the elimination of confusion that would result from having two sets of rules for the Massage Therapy program in Chapter 16 of the Texas Administrative Code.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed repeal is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeal. 16 TAC Chapter 117 has been implemented and, therefore, the rules in the proposed repeal are obsolete and have no economic costs to persons required to comply with the rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal. 16 TAC Chapter 117 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on small businesses, micro-businesses, or rural communities.

Since the agency has determined that the proposed repeal will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed repeal does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed repeal. For the first five years the proposed repeal will be in effect, the agency has determined the following:

(1) The proposed repeal does not create or eliminate a government program.

(2) Implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed repeal does not require an increase or decrease in fees paid to the agency.

(5) The proposed repeal does not create a new regulation.

(6) The proposed repeal does repeal an existing regulation. The transferred rules from DSHS are proposed for repeal because they are duplicative, obsolete, and inactive.

(7) The proposed repeal does not increase or decrease the number of individuals subject to the rule's applicability.

(8) The proposed repeal does not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, 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.

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, Chapter 51, 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.

§147.1.Definitions.

§147.2.Fees.

§147.3.Processing Applications.

§147.4.General Ethical Requirements.

§147.5.Consultation Document.

§147.6.Sexual Misconduct.

§147.7.Advertising.

§147.8.Massage Therapy Licenses.

§147.9.Qualifications for Licensure as a Massage Therapist.

§147.10.Massage Therapist Application Procedures and Documentation.

§147.11.Provisional Massage Therapist License.

§147.12.Examinations Required for Licensure as a Massage Therapist.

§147.13.Massage Therapist License Renewal.

§147.14.Hour Requirements for Continuing Education for Massage Therapists.

§147.15.Acceptable Continuing Education for Massage Therapists.

§147.16.Activities Unacceptable as Continuing Education for Massage Therapists.

§147.17.Pre-approved Continuing Education Providers.

§147.18.Reporting Continuing Education.

§147.19.Massage School General Provisions and Inspections.

§147.20.Massage School Application Procedures and Documentation.

§147.21.Massage School Administrative Personnel.

§147.22.Massage School Instructors.

§147.23.Massage School Financial Stability.

§147.24.Change of Massage School Ownership.

§147.25.Massage School License Renewal.

§147.26.Massage School Locations.

§147.27.Massage School Curriculum Outline and Internship.

§147.28.Advanced Course Work.

§147.29.Massage School Admission Requirements.

§147.30.Massage School Enrollment Procedures.

§147.31.Massage School Tuition and Fees.

§147.32.Massage School Conduct Policy.

§147.33.Massage School Cancellation and Refund Policy.

§147.34.Massage School Minimum Progress Standards.

§147.35.Massage School Attendance Standards.

§147.36.Massage School Equipment and Facility Requirements.

§147.37.Massage School Transcripts and Records.

§147.38.Student Grievances.

§147.39.Massage School Fire Safety.

§147.40.Massage School Sanitation.

§147.41.Massage Establishment Application Procedures and Licensure.

§147.42.General Requirements for Massage Establishments.

§147.43.Sanitation Requirements for Massage Establishments.

§147.44.Massage Establishment Renewal.

§147.45.Massage Establishment Exemptions.

§147.46.Massage Establishment Change of Ownership or Change of Location.

§147.47.Filing Complaints.

§147.48.Investigation of Complaints.

§147.49.Grounds for Denial of License or Disciplinary Action.

§147.50.Formal Hearings.

§147.51.Suspension of License for Failure to Pay Child Support.

§147.52.Informal Disposition.

§147.53.Licensing of Persons with Criminal Background.

§147.54.Request for Criminal History Evaluation Letter.

§147.55.Licensing of Military Service Members, Military Veterans, and Military Spouses.

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 January 18, 2018.

TRD-201800174

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 4, 2018

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


CHAPTER 148. LASER HAIR REMOVAL

16 TAC §148.2

The Texas Department of Licensing and Regulation (Department) proposes the repeal of an existing rule at 16 Texas Administrative Code (TAC), Chapter 148, §148.2, regarding the Laser Hair Removal program.

JUSTIFICATION AND EXPLANATION OF THE RULES

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 were 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, Sections §§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 took effect on September 1, 2017.

On August 18, 2017, the Commission adopted its own set of rules for the Laser Hair Removal program located at 16 TAC Chapter 118. The Commission's rules were effective November 1, 2017, (42 TexReg 4815). The Department officially commenced all regulatory functions for the Laser Hair Removal program on November 1, 2017.

The current 16 TAC Chapter 148 rules were transferred from DSHS to be repealed to eliminate possible industry and public confusion (42 TexReg 6202). These rules were formerly located at 25 TAC Chapter 289, Subchapter G. The proposed repeal is necessary to complete the implementation of S.B. 202.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §148.2 eliminates possible industry and public confusion by removing duplicate, obsolete, and inactive rules for the Laser Hair Removal program.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed repeal is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 118 has been implemented and therefore the rules in the proposed repeal are obsolete and therefore have no effect on state or local government costs.

Mr. Francis has determined that for each year of the first five years the proposed repeal is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 118 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government revenues.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed repeal will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. 16 TAC Chapter 118 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on the local economy.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed repeal is in effect, the public will benefit from the elimination of duplicate, obsolete, and inactive rules and the elimination of confusion that would result from having two sets of rules for the Laser Hair Removal program in Chapter 16 of the Texas Administrative Code.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed repeal is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeal. 16 TAC Chapter 118 has been implemented and therefore the rules in the proposed repeal are obsolete and have no economic costs to persons who are required to comply with the rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal. 16 TAC Chapter 118 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on small businesses, micro-businesses, or rural communities.

Since the agency has determined that the proposed repeal will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed repeal does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed repeal. For the first five years the proposed repeal will be in effect, the agency has determined the following:

(1) The proposed repeal does not create or eliminate a government program.

(2) Implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed repeal does not require an increase or decrease in fees paid to the agency.

(5) The proposed repeal does not create a new regulation.

(6) The proposed repeal does repeal an existing regulation. The transferred rules from DSHS are proposed for repeal because they are duplicative, obsolete, and inactive.

(7) The proposed repeal does not increase or decrease the number of individuals subject to the rule's applicability.

(8) The proposed repeal does not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, 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.

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, Chapter 51, 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, §§501 - 522. No other statutes, articles, or codes are affected by the proposal.

§148.2.Registration and Radiation Safety Requirements for Use of Laser Hair Removal Devices.

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 January 18, 2018.

TRD-201800176

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 4, 2018

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


CHAPTER 149. TEXAS MOLD ASSESSMENT AND REMEDIATION

16 TAC §§149.1 - 149.38

The Texas Department of Licensing and Regulation (Department) proposes the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 149, §§149.1 - 149.38, regarding the Mold Assessors and Remediators program.

JUSTIFICATION AND EXPLANATION OF THE RULES

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 were 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, Sections §§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 took effect on September 1, 2017.

On August 18, 2017, the Commission adopted its own set of rules for the Mold Assessors and Remediators program located at 16 TAC Chapter 78. The Commission's rules were effective November 1, 2017, (42 TexReg 4619). The Department officially commenced all regulatory functions for the Mold Assessors and Remediators program on November 1, 2017.

The current 16 TAC Chapter 149 rules were transferred from DSHS to be repealed to eliminate possible industry and public confusion (42 TexReg 6202). These rules were formerly located at 25 TAC Chapter 295, Subchapter J. The proposed repeal is necessary to complete the implementation of S.B. 202.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §§149.1 - 149.38 eliminates possible industry and public confusion by removing duplicate, obsolete, and inactive rules for the Mold Assessors and Remediators program.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed repeal is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 78 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government costs.

Mr. Francis has determined that for each year of the first five years the proposed repeal is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 78 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state and local government revenues.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed repeal will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. 16 TAC Chapter 78 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on the local economy.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed repeal is in effect, the public will benefit from the elimination of duplicate, obsolete, and inactive rules and the elimination of confusion that would result from having two sets of rules for the Laser Hair Removal program in Chapter 16 of the Texas Administrative Code.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed repeal is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeal. 16 TAC Chapter 78 has been implemented and therefore the rules in the proposed repeal are obsolete and have no economic costs to persons who are required to comply with the rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal. 16 TAC Chapter 78 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on small businesses, micro-businesses, or rural communities.

Since the agency has determined that the proposed repeal will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed repeal does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed repeal. For the first five years the proposed repeal will be in effect, the agency has determined the following:

(1) The proposed repeal does not create or eliminate a government program.

(2) Implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed repeal does not require an increase or decrease in fees paid to the agency.

(5) The proposed repeal does not create a new regulation.

(6) The proposed repeal does repeal an existing regulation. The transferred rules from DSHS are proposed for repeal because they are duplicative, obsolete, and inactive.

(7) The proposed repeal does not increase or decrease the number of individuals subject to the rule's applicability.

(8) The proposed repeal does not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, 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.

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, Chapter 51, 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.

§149.1.General Provisions.

§149.2.Definitions.

§149.3.Exceptions and Exemptions.

§149.4.Code of Ethics.

§149.5.Credentials: General Conditions.

§149.6.Credentials: General Responsibilities.

§149.7.Conflict of Interest and Disclosure Requirement.

§149.8.Credentials: Applications and Renewals.

§149.9.Licensing: Insurance Requirements.

§149.10.Licensing: State Licensing Examination.

§149.11.Mold Assessment Technician: Licensing Requirements.

§149.12.Mold Assessment Consultant: Licensing Requirements.

§149.13.Mold Assessment Company: Licensing Requirements.

§149.14.Mold Remediation Worker: Registration Requirements.

§149.15.Mold Remediation Contractor: Licensing Requirements.

§149.16.Mold Remediation Company: Licensing Requirements.

§149.17.Mold Analysis Laboratory: Licensing Requirements.

§149.18.Mold Training Provider: Accreditation.

§149.19.Training: Approval of Training Courses and Instructors.

§149.20.Training: Required Mold Training Courses.

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

§149.22.Minimum Work Practices and Procedures for Mold Remediation.

§149.23.Mold Remediation of Heating, Ventilation and Air Conditioning (HVAC) Systems.

§149.24.Post-Remediation Assessment and Clearance.

§149.25.Notifications.

§149.26.Recordkeeping.

§149.27.Photographs; Certificate of Mold Damage Remediation; Duty of Property Owner.

§149.28.Complaints.

§149.29.Compliance: Inspections and Investigations.

§149.30.Compliance: Reprimand, Suspension, Revocation, Probation.

§149.31.Compliance: Administrative Penalty.

§149.32.Compliance: Exception to the Administrative Penalty.

§149.33.Compliance: Notice; Opportunity for Hearing; Order.

§149.34.Compliance: Options Following Administrative Order.

§149.35.Compliance: Collection of Administrative Penalty; Judicial Review.

§149.36.Compliance: Civil Penalty.

§149.37.Compliance: Injunctive Relief.

§149.38.Civil Liability Exemption for Certain Property Owners or Governmental Entities.

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 January 18, 2018.

TRD-201800179

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 4, 2018

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


CHAPTER 150. OFFENDER EDUCATION PROGRAMS (FOR ALCOHOL AND DRUG-RELATED OFFENSES)

16 TAC §§150.1 - 150.24

The Texas Department of Licensing and Regulation (Department) proposes the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 150, §§150.1 - 150.24, regarding the Offender Education Programs for Alcohol and Drug-Related Offenses.

JUSTIFICATION AND EXPLANATION OF THE RULES

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 were 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, Sections §§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 took effect on September 1, 2017.

On August 18, 2017, the Commission adopted its own set of rules for the Offender Education Programs for Alcohol and Drug-Related Offenses located at 16 TAC Chapter 90. The Commission's rules were effective November 1, 2017, (42 TexReg 4632). The Department officially commenced all regulatory functions for the Offender Education Programs for Alcohol and Drug-Related Offenses on November 1, 2017.

The current 16 TAC Chapter 150 rules were transferred from DSHS to be repealed to eliminate possible industry and public confusion (42 TexReg 6202). These rules were formerly located at 25 TAC Chapter 453. The proposed repeal is necessary to complete the implementation of S.B. 202.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §§150.1 - 150.24 eliminates possible industry and public confusion by removing duplicate, obsolete, and inactive rules for the Offender Education Programs for Alcohol and Drug-Related Offenses.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed repeal is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 90 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government costs.

Mr. Francis has determined that for each year of the first five years the proposed repeal is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed repeal. 16 TAC Chapter 78 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government revenues.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed repeal will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. 16 TAC Chapter 90 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on the local economy.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed repeal is in effect, the public will benefit from the elimination of duplicate, obsolete, and inactive rules and the elimination of confusion that would result from having two sets of rules for the Offender Education Programs for Alcohol and Drug-Related Offenses in Chapter 16 of the Texas Administrative Code.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed repeal is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeal. 16 TAC Chapter 90 has been implemented and therefore the rules in the proposed repeal are obsolete and have no economic costs to persons who are required to comply with the rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal. 16 TAC Chapter 90 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on small businesses, micro-businesses, or rural communities.

Since the agency has determined that the proposed repeal will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed repeal does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed repeal. For the first five years the proposed repeal will be in effect, the agency has determined the following:

(1) The proposed repeal does not create or eliminate a government program.

(2) Implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed repeal does not require an increase or decrease in fees paid to the agency.

(5) The proposed repeal does not create a new regulation.

(6) The proposed repeal does repeal an existing regulation. The transferred rules from DSHS are proposed for repeal because they are duplicative, obsolete, and inactive.

(7) The proposed repeal does not increase or decrease the number of individuals subject to the rule's applicability.

(8) The proposed repeal does not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, 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.

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, Chapter 51, 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; Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, Sections §§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.

§150.1.Definitions.

§150.2.Requirement of Program and Instructor Certification and Scope of Rules.

§150.3.Fees.

§150.4.Program Instructor Certification.

§150.5.Instructor Certification Renewals.

§150.6.Program Application and Certification.

§150.7.Program Expiration and Renewal.

§150.8.Program Content and Materials.

§150.9.Uniform Certificates of Course Completion.

§150.10.Classroom Facilities and Equipment.

§150.11.Program Administration.

§150.12.Recordkeeping and Reporting.

§150.13.General Program Operation Requirements.

§150.14.Additional Program Requirements for Drug Offender Education Programs.

§150.15.Additional Requirements for Alcohol Education Program for Minors.

§150.16.Requirements for DWI Education Programs.

§150.17.Additional Requirements for DWI Intervention Programs.

§150.18.Confidentiality.

§150.19.Discrimination Prohibited.

§150.20.Participant Complaints.

§150.21.Exceptions.

§150.22.Action Against an Applicant or Certification Holder.

§150.23.Criminal History Standards.

§150.24.Procedures for Adverse Action Against a Program or Instructor Certificate.

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 January 18, 2018.

TRD-201800181

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 4, 2018

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