TITLE 25. HEALTH SERVICES

PART 1. DEPARTMENT OF STATE HEALTH SERVICES

CHAPTER 85. HEALTH AUTHORITIES

SUBCHAPTER A. LOCAL PUBLIC HEALTH

25 TAC §85.1

The Executive Commissioner of Health and Human Services (commission), on behalf of the Department of State Health Services (department), adopts an amendment to §85.1, concerning health authorities, with a change to the proposed text as published in the July 29, 2016, issue of the Texas Register (41 TexReg 5500).

BACKGROUND AND PURPOSE

The Local Public Health Reorganization Act, Health and Safety Code, Chapter 121, governs health authorities. A health authority performs duties necessary to implement and enforce laws to protect the public health and as prescribed by the department. The purpose of the amendments is to replace references to the Board of Health with references to the department and to clarify the rule by correcting references to subsections in a previous rule revision.

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 85.1 has been reviewed, and the department has determined that reasons for adopting the section continues to exist because a rule on this subject is needed to administer health authorities effectively.

SECTION-BY-SECTION SUMMARY

The amendments to §85.1 are nonsubstantive changes needed to clarify the rule. The amendments to §85.1(b)(2) and (f) replace references to the "Board of Health" with the "department." The proposed change in reference to the department is in compliance with Senate Bill 219, 84th Legislature, 2015, which revised Health and Safety Code, Chapter 121.

The amendment to §85.1(c) deletes an unnecessary reference to subsection (d) from a previous rule revision. The amendment to §85.1(i) replaces a reference to subsection (i) with a reference to subsection (h) to clarify that when a new health authority has been appointed, the person must take the official oath and file a copy of the oath and appointment with the appropriate regional office as required by subsection (h).

COMMENTS

The department, on behalf of the commission, did not receive any public comments during the comment period. The agency is making a minor change to replace a reference to the "department" in subsection (f).

Legal Certification

The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the rule, as adopted, has been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

Statutory Authority

The amendment is authorized by Health and Safety Code, §121.024, which requires local health authorities to perform each duty that is necessary to implement and enforce a law to protect the public health or as prescribed by the department; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001. Review of the rule implements Government Code, §2001.039.

§85.1.Health Authorities.

(a) A health authority is a physician appointed under the Local Public Health Reorganization Act, Health and Safety Code, Chapter 121, by the governing body of a city, county, or public health district to administer the state and local laws relating to public health.

(b) A health authority must be appointed in a municipality or county that has established a local health department or public health district.

(1) The director of a local health department or public health district, if the director is a physician, shall be the health authority within the jurisdiction of the local health department or district.

(2) If a non-physician serves as the director of a local health department or public health district, the director shall appoint a physician to serve as the health authority within the jurisdiction of such local health department or district subject to the approval of the governing body of the local health department or public health district. No action is required by the department to further approve the appointment.

(c) A health authority may be appointed, but is not required to be appointed, in a municipality or county that has not established a local health department or public health district. The governing body of the municipality or the commissioners court of the county may appoint the health authority within its jurisdiction.

(d) A health authority serves for a term of two years and may be appointed to successive terms.

(e) A regional director of the department shall perform the duties of a health authority for a municipality, county, public health district, or entity authorized to appoint a health authority in a jurisdiction in the regional director's region in which there is no health authority. A regional director is a physician who is employed by the department and serves as the chief administrative officer of a region. A region is a geographic area of the State of Texas designated by the department.

(f) A regional director of the department may perform some or all of the duties of a health authority if an appointed health authority fails to perform duties prescribed by the department in this section. At the request of the appointing authority, a regional director may serve as a health authority because of the absence or incapacity of the appointed health authority. No action by the department is necessary to further approve a regional director's performance or service.

(g) A health authority shall perform each duty that is necessary to implement and enforce a law to protect the public health as stated in the Health and Safety Code, §121.024.

(h) An appointed health authority shall take the official oath required by the Texas Constitution, Article 16, §1, including the statement of appointed officer and file a copy of the oath and appointment with the appropriate regional office within ten working days of the date of taking the oath.

(i) If a health authority ceases to hold office for any reason, the appointing authority shall immediately notify the department and appropriate regional director. When a new health authority has been appointed, the person will take the action outlined in subsection (h) of this section and notify the appropriate regional office of the change.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700166

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: July 29, 2016

For further information, please call: (512) 776-6972


CHAPTER 140. HEALTH PROFESSIONS REGULATION

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), adopts amendments to §140.111 and §140.161; the repeals of §§140.121, 140.170, 140.315, 140.378, 140.417, and 140.433; and new §§140.121, 140.170, 140.378, 140.433 and 140.434, concerning the licensing and regulation of sanitarians, code enforcement officers, massage therapists, and chemical dependency counselors, without changes to the proposed text as published in the August 12, 2016, issue of the Texas Register (41 TexReg 5908) and therefore, the sections will not be republished.

BACKGROUND AND PURPOSE

The new rules implement Senate Bill (SB) 807 and SB 1307, 84th Legislature, Regular Session, 2015, which amended Occupations Code, Chapter 55, relating to the occupational license application and examination fees and licensing relating to the military for sanitarians, code enforcement officers, massage therapists, and chemical dependency counselors. The affected licensing programs are within the Professional Licensing and Certification Unit of the department's Division for Regulatory Services.

The amendments, repeals, and new rules revise existing rule language for sanitarians, code enforcement officers, massage therapists, and licensed chemical dependency counselors to implement the amendments made by SB 807, 84th Legislature, Regular Session, 2015, and SB 1307, 84th Legislature, Regular Session, 2015, to Occupations Code, Chapter 55, relating to occupational licensing and renewal, and application and examination fees, for certain military service members, military veterans, and military spouses.

New §140.434 in Subchapter I concerning licensed chemical dependency counselors implements House Bill (HB) 1449, 84th Legislature, Regular Session, 2015, as it relates to child custody and adoption evaluations in certain suits affecting the parent-child relationship, by prohibiting a holder of a chemical dependency counselor license from conducting a child custody or adoption evaluation under amended Family Code, Chapter 107, unless the individual is otherwise qualified by law to conduct the evaluation, or is appointed by a court to conduct it under Family Code, §107.106 or §107.155, as applicable.

SECTION-BY-SECTION SUMMARY

The amendments to §140.111 and §140.161 remove existing language relating to military licensing concerning sanitarians and code enforcement officers in order to address corresponding, new, and amended requirements otherwise contained in the new rules also being adopted for those occupations, in compliance with Occupations Code, Chapter 55.

The repeal of §§140.121, 140.170, 140.315, 140.378, 140.417 and 140.433 governing sanitarians, code enforcement officers, massage therapists, and licensed chemical dependency counselors removes existing language which relates to certain licensing and renewal of military service members, military veterans, and/or military spouses, to be incorporated into, or modified or superseded by, the new rules for those occupations.

New §§140.121, 140.170, 140.378, and 140.433 implement Occupations Code, Chapter 55, including legislative changes to that chapter relating to the occupational licensing and renewal, and application and examination fees, for certain Military Service Members, Military Veterans, and Military Spouses. However, the rules do not include implementing language concerning the examination fee waiver, which does not apply to the sanitarian, code enforcement officer, massage therapy, or licensed chemical dependency counselor licensure examinations, since those examination fees are not paid to the state, but to the third party administrator of the examination.

New §140.434 implements HB 1449 of the 84th Legislature, Regular Session, 2015, as it relates to licensed chemical dependency counselors and child custody and adoption evaluations. HB 1449 amended the Family Code, Chapter 107, relating to child custody and adoption evaluations conducted and provided in certain suits affecting the parent-child relationship. New §140.434 prohibits the licensed chemical dependency counselors from conducting those evaluations unless the individual is otherwise qualified by law to conduct the evaluation or is appointed by a court to conduct it under Family Code, §107.106 or §107.155, as applicable.

COMMENTS

The department, on behalf of the commissioner, did not receive any comments regarding the proposed rules during the comment period.

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the state agencies' legal authority.

SUBCHAPTER C. SANITARIANS

25 TAC §140.111, §140.121

STATUTORY AUTHORITY

The amendment and new rule are adopted under Occupations Code, Chapter 55, which includes state agency rulemaking authorization related to that chapter's requirements and provisions, and §§455.051, 504.051, 1952.051, and 1953.051, which authorize the adoption of rules needed for the department to perform its licensing and regulatory duties under those chapters for massage therapists, chemical dependency counselors, code enforcement officers, and sanitarians, respectively. The new §140.434 for chemical dependency counselors, which relates to child custody and adoption evaluations conducted in certain suits affecting the parent-child relationship, is adopted under Family Code, Chapter 107 and HB 1449. The repeals, amendments, and new rules are also adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700167

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


25 TAC §140.121

STATUTORY AUTHORITY

The repeal is adopted under Occupations Code, Chapter 55, which includes state agency rulemaking authorization related to that chapter's requirements and provisions, and §§455.051, 504.051, 1952.051, and 1953.051, which authorize the adoption of rules needed for the department to perform its licensing and regulatory duties under those chapters for massage therapists, chemical dependency counselors, code enforcement officers, and sanitarians, respectively. The new §140.434 for chemical dependency counselors, which relates to child custody and adoption evaluations conducted in certain suits affecting the parent-child relationship, is adopted under Family Code, Chapter 107 and HB 1449. The repeals, amendments, and new rules are also adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700168

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


SUBCHAPTER D. CODE ENFORCEMENT OFFICERS

25 TAC §140.161, §140.170

STATUTORY AUTHORITY

The amendment and new rules are adopted under Occupations Code, Chapter 55, which includes state agency rulemaking authorization related to that chapter's requirements and provisions, and §§455.051, 504.051, 1952.051, and 1953.051, which authorize the adoption of rules needed for the department to perform its licensing and regulatory duties under those chapters for massage therapists, chemical dependency counselors, code enforcement officers, and sanitarians, respectively. The new §140.434 for chemical dependency counselors, which relates to child custody and adoption evaluations conducted in certain suits affecting the parent-child relationship, is adopted under Family Code, Chapter 107 and HB 1449. The repeals, amendments, and new rules are also adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700169

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


25 TAC §140.170

STATUTORY AUTHORITY

The repeal is adopted under Occupations Code, Chapter 55, which includes state agency rulemaking authorization related to that chapter's requirements and provisions, and §§455.051, 504.051, 1952.051, and 1953.051, which authorize the adoption of rules needed for the department to perform its licensing and regulatory duties under those chapters for massage therapists, chemical dependency counselors, code enforcement officers, and sanitarians, respectively. The new §140.434 for chemical dependency counselors, which relates to child custody and adoption evaluations conducted in certain suits affecting the parent-child relationship, is adopted under Family Code, Chapter 107 and HB 1449. The repeals, amendments, and new rules are also adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700170

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


SUBCHAPTER H. MASSAGE THERAPISTS

DIVISION 3. MASSAGE THERAPISTS

25 TAC §140.315

STATUTORY AUTHORITY

The repeal is adopted under Occupations Code, Chapter 55, which includes state agency rulemaking authorization related to that chapter's requirements and provisions, and §§455.051, 504.051, 1952.051, and 1953.051, which authorize the adoption of rules needed for the department to perform its licensing and regulatory duties under those chapters for massage therapists, chemical dependency counselors, code enforcement officers, and sanitarians, respectively. The new §140.434 for chemical dependency counselors, which relates to child custody and adoption evaluations conducted in certain suits affecting the parent-child relationship, is adopted under Family Code, Chapter 107 and HB 1449. The repeals, amendments, and new rules are also adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700171

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


DIVISION 7. COMPLAINTS, VIOLATIONS AND SUBSEQUENT DISCIPLINARY ACTIONS

25 TAC §140.378

STATUTORY AUTHORITY

The repeal is adopted under Occupations Code, Chapter 55, which includes state agency rulemaking authorization related to that chapter's requirements and provisions, and §§455.051, 504.051, 1952.051, and 1953.051, which authorize the adoption of rules needed for the department to perform its licensing and regulatory duties under those chapters for massage therapists, chemical dependency counselors, code enforcement officers, and sanitarians, respectively. The new §140.434 for chemical dependency counselors, which relates to child custody and adoption evaluations conducted in certain suits affecting the parent-child relationship, is adopted under Family Code, Chapter 107 and HB 1449. The repeals, amendments, and new rules are also adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700172

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


25 TAC §140.378

STATUTORY AUTHORITY

The new rule is adopted under Occupations Code, Chapter 55, which includes state agency rulemaking authorization related to that chapter's requirements and provisions, and §§455.051, 504.051, 1952.051, and 1953.051, which authorize the adoption of rules needed for the department to perform its licensing and regulatory duties under those chapters for massage therapists, chemical dependency counselors, code enforcement officers, and sanitarians, respectively. The new §140.434 for chemical dependency counselors, which relates to child custody and adoption evaluations conducted in certain suits affecting the parent-child relationship, is adopted under Family Code, Chapter 107 and HB 1449. The repeals, amendments, and new rules are also adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700173

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


SUBCHAPTER I. LICENSED CHEMICAL DEPENDENCY COUNSELORS

25 TAC §140.417, §140.433

STATUTORY AUTHORITY

The repeals are adopted under Occupations Code, Chapter 55, which includes state agency rulemaking authorization related to that chapter's requirements and provisions, and §§455.051, 504.051, 1952.051, and 1953.051, which authorize the adoption of rules needed for the department to perform its licensing and regulatory duties under those chapters for massage therapists, chemical dependency counselors, code enforcement officers, and sanitarians, respectively. The new §140.434 for chemical dependency counselors, which relates to child custody and adoption evaluations conducted in certain suits affecting the parent-child relationship, is adopted under Family Code, Chapter 107 and HB 1449. The repeals, amendments, and new rules are also adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700174

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


25 TAC §140.433, §140.434

STATUTORY AUTHORITY

The new rules are adopted under Occupations Code, Chapter 55, which includes state agency rulemaking authorization related to that chapter's requirements and provisions, and §§455.051, 504.051, 1952.051, and 1953.051, which authorize the adoption of rules needed for the department to perform its licensing and regulatory duties under those chapters for massage therapists, chemical dependency counselors, code enforcement officers, and sanitarians, respectively. The new §140.434 for chemical dependency counselors, which relates to child custody and adoption evaluations conducted in certain suits affecting the parent-child relationship, is adopted under Family Code, Chapter 107 and HB 1449. The repeals, amendments, and new rules are also adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2017.

TRD-201700175

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 2, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972