TITLE 22. EXAMINING BOARDS

PART 5. STATE BOARD OF DENTAL EXAMINERS

CHAPTER 101. DENTAL LICENSURE

22 TAC §101.11

The State Board of Dental Examiners (Board) proposes amended rule §101.11, concerning the temporary or permanent appointment of a custodian of records for a dentist's records. This amendment to the existing rule will require dentists to designate a custodian, and will provide for the Board to appoint a custodian if needed. This rule is being proposed to comply with the requirements of S.B. 313.

W. Boyd Bush, Jr., Ed.D., Executive Director, has determined that for the first five-year period the proposed rule is in effect, there will not be any fiscal implications for state or local government as a result of enforcing or administering the rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the agency's compliance with legislative directives and the safety and security of patient records.

W. Boyd Bush, Jr. has determined that no economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: the rule does not create or eliminate a government program; implementation of the proposed rule does not require the creation or elimination of employee positions; the implementation of the proposed rule does not require an increase or decrease in future appropriations; the proposed rule does not require an increase or decrease in fees paid to the agency; the proposed rule does not create a new regulation; the proposed rule expands an existing regulation; the proposed rule increases the number of individuals subject to it; the proposed rule does not adversely affect the state's economy.

Comments on the proposed new rule may be submitted to W. Boyd Bush, Jr., Ed.D., Executive Director, 333 Guadalupe, Suite 3-800, Austin, Texas 78701, by Fax to (512) 305-9364, or by email to official_rules_comments@tsbde.texas.gov no later than 30 days from the date that the proposed rule is published in the Texas Register.

This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §258.0511(a-1) and (c), which authorize the Board to establish conditions under which the board may temporarily or permanently appoint a person as custodian of a dentist's billing or dental patient records, and rules regarding the designation and duties of a dental custodian of records.

This proposed rule implements Texas Occupations Code §258.0511(a-1) and (c).

§101.11.Employment by Estate of Dentist or Person Acting for Mentally Incompetent Dentist.

(a) Texas Occupations Code, Title 3, Subtitle D, does not prevent a person who is the administrator or executor of the estate of a dentist or a person who is legally authorized to act for a dentist adjudicated to be mentally incompetent from employing a licensed dentist to:

(1) carry on the deceased or mentally incompetent dentist's practice for a reasonable period, as determined by the Board; or

(2) conclude the affairs of the practice, including the sale of any assets.

(b) Texas Occupations Code, Title 3, Subtitle D, does not prevent a licensed dentist from working for a person described by subsection (a) of this section during the administration of the estate or the period of incompetency.

(c) For purposes [of subsection (a)(1)] of this section, "reasonable period" means a period of no more than twelve (12) months from the date of the dentist's death or the date the dentist is lawfully determined to be mentally incompetent, whichever is applicable.

(d) Upon initial licensure as a dentist, and at each renewal period, a licensed dentist shall designate a custodian of records who shall act as temporary or permanent custodian for the dentist in the event of death or incapacity. This custodian of records may be employed by the administrator or estate of the dentist in the event of death or mental or physical incapacitation of the dentist. The custodian of records may also be appointed as needed during an unexplained disappearance of the dentist, or the abandonment of the dentist's patients without reasonable cause. If a licensed dentist has designated a person who is not a licensed dentist as a custodian of records, that person may serve as the custodian for a reasonable period of time as defined in subsection (c) of this section, and must ensure safe transfer of the patient records to each patient or another licensed dentist as soon as reasonably practicable.

(e) Should the custodian of records designated in subsection (d) of this section be unable to serve as custodian of records, the Board shall review and attempt to appoint an available custodian of records in the immediate area of the dentist's practice who may serve as custodian. The Board shall prioritize the security of patient health information and access to dental records.

(f) A custodian of records designated or appointed under this rule shall not be held responsible for any violations of the Dental Practice Act or Board rules occurring before the custodian is in possession of the licensed dentist's patient records, or any violations attributable to the actions of the licensed dentist who previously held the patient records. Designation or appointment as a custodian of records under this rule does not create a dentist-patient relationship between the custodian and patients of the licensed dentist.

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 June 8, 2018.

TRD-201802554

W. Boyd Bush, Jr.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: July 22, 2018

For further information, please call: (512) 475-0987


CHAPTER 102. FEES

22 TAC §102.1

The State Board of Dental Examiners (Board) proposes an amendment to rule §102.1, concerning fees. This amendment will increase fees to account for the agency changing to biennial renewals for dental licensure, as well as providing funding for the Board's mandated changes enacted in S.B. 313. This amended rule incorporates requirements due to enactment of SB 313 and changes to the General Appropriations Act in the eighty-fifth Texas Legislature Regular Session, 2017, relating to the continuation and functions of the Texas State Board of Dental Examiners, resulting in an appropriations increase of $222,943 in fiscal year 2019. The mandated increases are effective on September 1, 2018, and are as follows:

DDS Biennial Renewal +$150

DDS Biennial Renewal - Late 1 to 90 days +$150

DDS Biennial Renewal - Late 91 to 365 days +$150

DDS Faculty Biennial Renewal +$97

DDS Faculty Biennial Renewal Late 1 to 90 days +$97

DDS Faculty Biennial Renewal Late 91 to 365 days +97

DDS Nitrous Level 2-4 Permits +$200

DDS Nitrous Renewals Permits Levels 2-4 Permits +$50

DDS Conversion Fee-Faculty to Full Privilege +$67

DDS Application to Reactive a Retired License +$68

DDS Reinstatement of a Canceled Dental License +$68

DDS Conversion Fee - Full Privilege to Faculty +$67

DDS Conversion Fee-Temporary Licensure by Credentials to Full Privilege +$72

DH Biennial Renewal +$115

DH Biennial Renewal Late 1 to 90 days +$115

DH Biennial Renewal Late 91 to 365 days +$115

DH Faculty Biennial Renewal +$115

DH Faculty Biennial Renewal Late 1 to 90 days +$115

DH Faculty Biennial Renewal Late 91 to 365 days +$115

DH Conversion Fee - Faculty to Full Privilege +$7

DH Reinstatement of a Cancelled Dental Hygiene License +$4

DH Conversion Fee - Full Privilege to Faculty +$12

Annual Mobile Renewals +$1

W. Boyd Bush, Jr., Ed.D., Executive Director, has determined that for the first five-year period the proposed rule is in effect, the fiscal implications for state government will be that the Board will collect an appropriate amount of fees to offset appropriations as a result of S.B. 313.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the agency's compliance with legislative directives and the assurance that the Board collects appropriate funds to offset the appropriated funding for public safety and welfare programs through S.B. 313.

W. Boyd Bush, Jr. has determined that an economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this rule. Dental annual renewals, DDS faculty annual renewals, Dental hygienists annual renewals and dental hygienists faculty annual renewal fees are being doubled to account for biennial renewals adopted after the enactment of S.B. 313. DDS conversion fees faculty to full privilege, application to reactivate a retired license, reinstatement of a canceled dental license, full privilege to faculty and a conversion fee - temporary license by credentials to full private are being changed to ensure all correct fees are being applied where necessary. These include a $3-5 Texas Online fee, $7 Peer Assistance fee, $1-5 Patient Protection Fee, $55 HB 3201 fee and $1 NPDB fee. Dental hygienists conversion fee faculty to full privilege, reinstatement of a canceled dental hygiene license and conversion fee temporary licensure by credentials to full privilege are being changed to ensure all correct fees are applied where necessary. These include a $3-4 Texas Online fee, $2 Peer Assistance fee, $1-5 Patient Protection Fee, and $1 NPDB fee. The annual mobile renewal fee was adjusted to include a $1 patient protection fee. DDS Nitrous permit levels 2-4 fees were raised from $60 to $260. This will potentially affect an average of 270 new permit requests. DDS nitrous renewals levels 2-4 fees were raised from $10 to $60. This will potentially affect an average of 3,400 permit holders. These fees incorporate changes to Article I, §18.33, of the General Appropriations Act, due to enactment of S.B. 313, eighty-fifth Texas Legislature Regular Session, 2017, relating to the continuation and functions of the Texas State Board of Dental Examiners, resulting in an increase of $222,943 in fiscal year 2019. Increases mandated by the legislature are effective on September 1, 2018. These changes potentially effect up to 17,985 dentists, 14,054 dental hygienists, and 61 mobile units. Some of these practitioners work in small or micro-businesses, and some of these practitioners are located in rural areas of the state. The Board reviewed several possible methods of apportioning the necessary increase of fees across all license and permit holders, and after receiving stakeholder input and considering comments at public meetings, determined that the above distribution was the most equitable and appropriate solution. These fee changes are a direct result of direction provided by the Texas Legislature, and as such, must be adopted by the Board in some form.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: the rule does not create or eliminate a government program; implementation of the proposed rule does not require the creation or elimination of employee positions; the implementation of the proposed rule does not require an increase or decrease in future appropriations; the proposed rule requires an increase in fees paid to the agency; the proposed rule does not create a new regulation; the proposed rule expands an existing regulation; the proposed rule does not increase the number of individuals subject to it; the proposed rule does not adversely affect the state's economy.

Comments on the proposed new rule may be submitted to W. Boyd Bush, Jr., Ed.D., Executive Director, 333 Guadalupe, Suite 3-800, Austin, Texas 78701, by Fax to (512) 305-9364, or by email to official_rules_comments@tsbde.texas.gov no later than 30 days from the date that the proposed rule is published in the Texas Register.

This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §254.004, which authorizes the Board to collect sufficient fees to cover the cost of administering the Dental Practice Act.

This proposed rule does not affect any statutes. W. Boyd Bush, Jr., has determined that this rule is necessary to protect the health, safety, and welfare of the residents of Texas, and as such, Texas Government Code §2001.0045(c)(6) is applicable to this proposed rule.

§102.1.Fees.

Effective September 1, 2018, the Board has established the following reasonable and necessary fees for the administration of its function.

Figure: 22 TAC §102.1 (.pdf)

[Figure: 22 TAC §102.1]

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 June 8, 2018.

TRD-201802562

W. Boyd Bush, Jr.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: July 22, 2018

For further information, please call: (512) 475-0987


CHAPTER 107. DENTAL BOARD PROCEDURES

SUBCHAPTER A. PROCEDURES GOVERNING GRIEVANCES, HEARINGS, AND APPEALS

22 TAC §107.63

The State Board of Dental Examiners (Board) proposes amendments to §107.63, concerning the Board's procedure for scheduling and conducting informal settlement conferences. This amendment to the existing rule will clarify the scheduling procedures for informal settlement conferences, ensure that complaints are resolved in a timely manner, and clarify the Board's mediation process. This rule is being proposed through the authority granted in S.B. 313 directing the Board to promulgate rules related to the scheduling of informal settlement conferences.

W. Boyd Bush, Jr., Ed.D., Executive Director, has determined that for the first five-year period the proposed rule is in effect, there will not be any fiscal implications for state or local government as a result of enforcing or administering the rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the agency's compliance with legislative directives and the protection of the public safety and welfare by the prompt and efficient resolution of complaints against the Board's licensees.

W. Boyd Bush, Jr. has determined that no economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: the rule does not create or eliminate a government program; implementation of the proposed rule does not require the creation or elimination of employee positions; the implementation of the proposed rule does not require an increase or decrease in future appropriations; the proposed rule does not require an increase or decrease in fees paid to the agency; the proposed rule does not create a new regulation; the proposed rule does not expand an existing regulation; the proposed rule does not increase the number of individuals subject to it; the proposed rule does not adversely affect the state's economy.

Comments on the proposed amendments may be submitted to W. Boyd Bush, Jr., Ed.D., Executive Director, 333 Guadalupe, Suite 3-800, Austin, Texas 78701, by Fax to (512) 305-9364, or by email to official_rules_comments@tsbde.texas.gov no later than 30 days from the date that the proposed rule is published in the Texas Register.

This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §263.007(a), (b), (g), and (h), which authorize the Board to establish proceedings for informal settlement conferences, and procedures for scheduling and postponing the scheduling of informal settlement conferences.

No statutes are affected by this proposed rule.

§107.63.Informal Disposition and Mediation [Alternative Dispute Resolution].

(a) Policy. It is the Board's policy to encourage, where appropriate, the resolution and early settlement of contested disciplinary matters and internal disputes through informal and alternative dispute resolution procedures.

(b) Informal Disposition. [Pursuant to Texas Government Code, Chapter 2001 et seq., ultimate disposition of any complaint or matter pending before the Board may be made by stipulation, agreed settlement, or consent order.] Under Texas Occupations Code §263.0065, the Board may delegate the authority to dismiss or enter into agreed settlement for the resolution of certain complaints prior to an informal settlement conference. Texas Occupations Code §263.007 and §263.0073 authorize the Board to resolve complaints by [§263.0075, such a disposition may be reached through] review at an informal settlement conference.

(c) Scheduling of Informal Settlement Conference.

(1) Not later than the 180th day after the date the Board's official investigation of a complaint is commenced, the Board shall schedule an informal settlement conference unless good cause is shown by the Board for not scheduling the conference by that date. The following justifications represent good cause for Board staff to postpone scheduling an informal settlement conference:

(A) an expert reviewer's delinquency in reviewing and submitting a report to the Board under Texas Occupations Code §255.0067;

(B) a temporary suspension of the license holder's license under Texas Occupations Code §263.004;

(C) the filing of a contested case against the licensee with the State Office of Administrative Hearings to resolve the complaint;

(D) a pending contested case against the licensee with the State Office of Administrative Hearings where Board staff's requested sanction is license suspension or revocation;

(E) proposed resolution of the complaint through delegation pursuant to Texas Occupations Code §263.0065;

(F) a delay for a final judgment resulting from federal or state criminal charges filed against the licensee for conduct relevant to the complaint, if conviction for such charges would represent grounds for license suspension or revocation under the Texas Occupations Code or Board rules;

(G) a request for delay from federal, state, or local law enforcement to allow investigation of potential criminal charges against the licensee for conduct relevant to the complaint, if conviction for such charges would represent grounds for license suspension or revocation under the Texas Occupations Code or Board rules;

(H) delay of the investigation due to Board staff's inability to locate the licensee or complainant, or licensee's inability or refusal to provide relevant records for the Board's investigation; or

(I) the existence of pending complaints from prior fiscal years which require resolution at an informal settlement conference.

(2) Requests to reschedule the informal settlement conference by a licensee must be in writing and shall be referred to the General Counsel for consideration. To avoid undue disruption of the informal settlement conference schedule, the following requirements shall be applied. A request by a licensee to reschedule an informal settlement conference must be in writing and may be granted only if the licensee provides satisfactory evidence of the following requirements:

(A) The request must be received by the agency within five business days after the licensee received notice of the date of the informal settlement conference, must provide details showing that the licensee has a conflicting event that was scheduled prior to receipt of notice of the informal settlement conference, and must show the licensee has made reasonable efforts to reschedule such event but a conflict cannot reasonably be avoided.

(B) A request received by the agency more than five business days after the licensee received notice of the date of the informal settlement conference must provide details showing that an extraordinary event or circumstance has arisen since receipt of the notice that will prevent the licensee from attending the informal settlement conference. The request must show that the request is made within five business days after the licensee first becomes aware of the event or circumstance. Unavailability of the licensee's counsel for the informal settlement conference date shall not be adequate to show an extraordinary event or circumstance if the unavailability is due to scheduling conflicts with counsel's other clients or matters not related to counsel's representation of the licensee.

(3) A request by a licensee to reschedule an informal settlement conference based on the failure of the agency to send timely notice before the date scheduled for the informal settlement conference shall be granted, provided that the request is received by the Board within five business days after the late notice is received by the licensee and the licensee provides sufficient proof that the notice was not timely delivered to the licensee's address of record on file with the Board.

(d) [(c)] Informal [Board] Settlement Conference.

(1) Two [One] or more members of the Board or the Dental Review Committee shall represent the full Board at the informal [Board] settlement conference, and at least one panelist must be a dentist. At least one member of the representative panel shall be present in person, but other members of the panel may appear via teleconference.

(A) Notwithstanding subsection (d)(1), an informal settlement conference may be conducted by one panelist if the license holder who is the subject of the complaint waives the requirement that at least two panelists conduct the conference. If the license holder waives that requirement, the panelist may be a dentist, a dental hygienist, or a member who represents the public. If the licensee attends the scheduled informal settlement conference and, after being informed of the requirements of Texas Occupations Code §263.0072, does not object during the scheduled time of the conference to the lack of two panel members, the licensee shall have waived the requirement for purposes of that complaint's proceedings.

(B) Pursuant to Texas Occupations Code §263.0072(e), an informal settlement conference conducted under Texas Occupations Code §263.007 to show compliance with a Board order or remedial plan of the Board may be conducted by one panelist.

(2) The Board will provide the licensee notice in writing of the time, date, and place of the settlement conference not later than the 45th day before the date the conference is held. Such notification shall inform the licensee: of the specific allegations against the licensee and the information board staff intends to use at the informal settlement conference; that he or she may be represented by legal counsel; that the licensee may offer a rebuttal to the allegations, including the exhibits or the testimony of such witnesses as he or she may desire; that the Board will be represented by one or more of its members and by legal counsel; and that he or she may request that the matter be considered by the Board according to procedures described in Texas Occupations Code §263.007. The Board's rules or policies relating to the informal disposition of cases shall be enclosed with the notice of the settlement conference. Notice of the settlement conference, with enclosures, shall be sent by first class United States Mail or overnight courier to the address of record of the licensee on file with the Board or the licensee's attorney of record. An electronic copy of the notice and enclosures may be provided if the license holder or the license holder's representative consents to such electronic notice. A settlement conference may be rescheduled if Board staff does not provide adequate notice as required by this subsection. Delivery of the notice is presumed to have occurred three business days after the deposit of the notice with the United States Postal Service, one business day after deposit of the notice with an overnight courier, or immediately upon sending if the notice is provided electronically.

(3) The licensee must provide to Board staff his rebuttal not later than the 15th day before the date of the conference in order for that information to be considered at the conference.

(4) The settlement conference shall be informal and will not follow the procedure established in State Office of Administrative Hearing (SOAH) rules for contested cases. The settlement conference will be conducted by representatives [representative(s)] of the Board. The Board's representatives [representative ] may call upon the Board's attorney at any time for assistance in conducting the settlement conference. The licensee, his or her attorney, representative(s) of the Board, and Board staff may question witnesses, make relevant statements, present affidavits or statements of persons not in attendance, and may present such other evidence as may be appropriate.

(5) The Board's representatives [representative(s) ] may prohibit or limit access to the Board's investigative file by the licensee, his or her attorney, and the complainant and his or her representative.

(6) The Board's representatives [representative(s) ] shall exclude from the settlement conference all persons except the patient or other witnesses; the licensee and his or her attorney; the complainant; Board members; and Board staff. Complainants and licensees shall not be present in the informal settlement conference at the same time unless both parties consent, and the Board's representatives may exclude parties at any time to ensure the conference proceeds efficiently and with appropriate decorum.

(7) At the conclusion of the settlement conference, the Board's representatives [representative(s)] shall make recommendations for resolution or correction of any alleged violations of the Dental Practice Act or of the Board rules. Such recommendations may include any disciplinary actions authorized by Texas Occupations Code §263.002 or a remedial plan authorized by §263.0077 of the Dental Practice Act. The Board's representatives [representative(s)] may, on the basis that a violation of the Dental Practice Act or the Board's rules has not been established, dismiss the complaint [case, or refer the case to Board staff for further investigation]. Dismissal [Closure] of a complaint [case] by the Board's representatives [representative(s)] shall be adopted after [given effect immediately without the necessity of] presentation to the full Board for an affirmative vote. A recommendation to dismiss [close ] a complaint [case] requires no further action by the Respondent.

(8) Board staff shall draft a proposed settlement agreement or remedial plan reflecting the settlement recommendations, which the licensee shall either accept or reject. To accept the settlement recommendations, the licensee must sign the proposed agreed settlement order or remedial plan and return it to the Board. Inaction by the licensee shall constitute rejection. If the licensee rejects the proposed agreed settlement order or remedial plan, the matter shall be referred to SOAH for a contested case hearing.

(9) Following acceptance and execution of the proposed agreed settlement order or remedial plan by the licensee, said proposed order shall be submitted to the entire Board for approval.

(10) On request of the licensee, Board staff shall make a recording of the conference. The recording is part of the investigative file and may not be released to a third party. Board staff may charge the licensee a fee to cover the cost of recording the conference. Board staff shall provide a copy of the recording to the licensee on the licensee's request.

[(d)] Use of Mediation [ADR ] In Contested Disciplinary Matters.

(1) The [Board Secretary or the] Executive Director or General Counsel may refer a contested disciplinary matter to a mediation [an ADR] process to seek resolution or correction of any alleged violations of the Dental Practice Act or of the Board rules. Such mediation [ADR] processes may include [(A) any procedure or combination of procedures described by Chapter 154, Texas Civil Practice and Remedies Code; or (B)] any procedure described in the SOAH Rules of Procedure. Referral to mediation may occur prior to or simultaneous with a contested case filed at SOAH.

(2) Any agreement or recommendation resulting from the application of a mediation [an ADR] process to a contested disciplinary matter shall be documented in written form and signed by the licensee, and a representative of [legal counsel for] the Board and/or the Executive Director [or Board Secretary]. Such an agreement or recommendation may include any disciplinary actions authorized by Chapter 263 [§263.002 ] of the Dental Practice Act.

(3) If the mediation [ADR] process results in no agreement or recommendation, the matter shall be referred to SOAH for a contested case hearing.

(f) [(e)] Consideration by the Board.

(1) All proposed agreed settlement orders, remedial plans, agreements or other recommendations shall be reviewed by the full Board for approval.

(2) Upon an affirmative majority vote, the Board shall enter an order approving the proposed agreed settlement order, remedial plan, agreement, or recommendation. Said order shall bear the signature of the Presiding Officer and Board Secretary, or of the officer presiding at such meeting.

(3) If the Board does not approve a proposed settlement order, remedial plan, agreement, or recommendation, the licensee shall be so informed. The matter shall be referred by the Board to the Board Secretary and Executive Director for consideration of appropriate action.

(g) [(f)] Restitution.

(1) Pursuant to Texas Occupations Code §263.0075, the Board may order a licensee to pay restitution to a patient as provided in a proposed agreed settlement order or other agreement or recommendation, instead of or in addition to any administrative penalty.

(2) The amount of restitution ordered may not exceed the amount the patient paid to the licensee for the service or services from which the complaint arose. The Board shall not require payment of other damages or make an estimation of harm in any order for restitution.

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 June 8, 2018.

TRD-201802555

W. Boyd Bush, Jr.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: July 22, 2018

For further information, please call: (512) 475-0987


CHAPTER 110. SEDATION AND ANESTHESIA

22 TAC §110.9

The State Board of Dental Examiners (Board) proposes amended rule §110.9, concerning renewal requirements for sedation/anesthesia permit holders. This amended rule will require permit holders to renew permits biennially as opposed to annually, and will require permit holders to take the sedation/anesthesia jurisprudence assessment once every five years. This rule is being proposed to comply with the requirements of S.B. 313.

W. Boyd Bush, Jr., Ed.D., Executive Director, has determined that for the first five-year period the proposed rule is in effect, there will not be any fiscal implications for state or local government as a result of enforcing or administering the rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the agency's compliance with legislative directives and protection of the safety and welfare of the Texas public by further education of permit holders as a result of the jurisprudence assessment requirements.

W. Boyd Bush, Jr. has determined that no economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: the rule does not create or eliminate a government program; implementation of the proposed rule does not require the creation or elimination of employee positions; the implementation of the proposed rule does not require an increase or decrease in future appropriations; the proposed rule does not require an increase or decrease in fees paid to the agency; the proposed rule does not create a new regulation; the proposed rule expands an existing regulation; the proposed rule does not increase the number of individuals subject to it; the proposed rule does not adversely affect the state's economy.

Comments on the proposed new rule may be submitted to W. Boyd Bush, Jr., Ed.D., Executive Director, 333 Guadalupe, Suite 3-800, Austin, Texas 78701, by Fax to (512) 305-9364, or by email to official_rules_comments@tsbde.texas.gov no later than 30 days from the date that the proposed rule is published in the Texas Register.

This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §258.1552(b), which requires a permit holder to pass the online jurisprudence examination developed by the Board once every five years.

This proposed rule implements the requirements of Texas Occupations Code §258.1552.

§110.9.Anesthesia Permit Renewal.

(a) The Board shall renew an anesthesia/sedation permit biennially [annually] if required fees are paid and the required emergency management training and continuing education requirements are satisfied. The Board shall not renew an anesthesia/sedation permit if, after notice and opportunity for hearing, the Board finds the permit holder has provided, or is likely to provide, anesthesia/sedation services in a manner that does not meet the minimum standard of care. If a hearing is held, the Board shall consider factors including patient complaints, morbidity, mortality, and anesthesia consultant recommendations.

(b) Fees. Biennial dental license renewal certificates shall include the biennial [annual] permit renewal, except as provided for in this section. The licensee shall be assessed a biennial [an annual] renewal fee in accordance with the fee schedule in Chapter 102 of this title.

(c) Continuing Education.

(1) In conjunction with the biennial [annual ] renewal of a dental license, a dentist seeking to renew a minimal sedation, moderate sedation, or deep sedation/general anesthesia permit must submit proof of completion of the following hours of continuing education every two years on the administration of or medical emergencies associated with the permitted level of sedation:

(A) Level 1: Minimal Sedation - six (6) hours

(B) Levels 2 and 3: Moderate Sedation - eight (8) hours

(C) Level 4: Deep Sedation/General Anesthesia - twelve (12) hours

(2) The continuing education requirements under this section shall be in addition to any additional courses required for licensure. Advanced Cardiac Life Support (ACLS) course and Pediatric Advanced Life Support (PALS) course may not be used to fulfill the continuing education requirement for renewal of the permit under this section.

(3) Continuing education courses must meet the provider endorsement requirements of §104.2 of this title.

(d) Anesthesia Jurisprudence Examination. The Board shall develop and administer an online jurisprudence examination to determine a permit holder's knowledge of the Dental Practice Act, Board rules, and other applicable laws of this state relating to the administration of anesthesia. A permit holder for nitrous oxide, level 1, level 2, level 3, or level 4 sedation/anesthesia must pass the online jurisprudence examination developed by the Board once every five years.

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 June 8, 2018.

TRD-201802556

W. Boyd Bush, Jr.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: July 22, 2018

For further information, please call: (512) 475-0987


22 TAC §110.16

The State Board of Dental Examiners (Board) proposes new rule §110.16, concerning Sedation/Anesthesia of High-Risk Patients. This new rule will require dentists to undergo additional didactic and clinical training prior to providing levels 2, 3, or 4 sedation/anesthesia to high-risk patients. This rule is being proposed to comply with the requirements of Senate Bill 313 (S.B. 313).

W. Boyd Bush, Jr., Ed.D., Executive Director, has determined that for the first five-year period the proposed rule is in effect, there will not be any fiscal implications for state or local government as a result of enforcing or administering the rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the agency's compliance with legislative directives and increased public safety as a result of increased training requirements for dentists.

W. Boyd Bush, Jr. has also determined that an economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this rule. The Board has approximately 3,400 permit holders affected by this rule across the State of Texas. Many of these permit holders are considered small or micro-businesses in that they are independent practitioner-business owners employing fewer than 100 employees. Many of them practice in rural communities, defined as municipalities with fewer than 25,000 people. Small businesses, micro-businesses, and rural communities will almost certainly experience an adverse economic effect from this proposed rule. Informal comments presented at stakeholder and committee meetings estimate the cost of the new additional training program will be in the range of $10,000 - 20,000. Permit holders will have to take at least 16 hours out of their schedule for the didactic training and obtaining the necessary clinical training may likely require even further time, travel, and expense. As for rural communities, it is an inevitable consequence of this regulation that there will be fewer providers of levels 2, 3, and 4 sedation/anesthesia for these patients throughout the State of Texas. There are already fewer of these providers in rural areas than in urban areas and presumably that gap will grow wider due to the costs associated with this regulation. A provider in a rural area who only performs these procedures a few times a year likely will not go through the additional training required to continue doing so. As a result, rural patients may have to seek out someone else who is qualified to perform the procedures, likely in a more urban setting that will require additional time and expense. As such, rural communities will likely experience an adverse economic impact from this proposed regulation. That said, this rule is being proposed due to a legislative mandate in S.B. 313 (85th Legislature) that requires these practitioners to undergo "additional didactic and clinical training," as defined by the Board. The legislature has mandated further training to protect the health and safety of all Texans. The Board was charged with defining "additional training" and after many discussions about alternatives they arrived at the requirements that are being proposed. The proposed requirements could be higher or lower, but either way, the legislature has mandated "additional training" and any amount of "additional training" is going to have an adverse economic effect on small businesses and rural communities. It would not have been acceptable to the Board of the legislature to have proposed one standard for rural providers and another for urban providers. The Board believes the proposed rule strikes a good balance between protecting the public health and safety and keeping the new regulation economically feasible for those who wish to provide or receive this service.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: the rule does not create or eliminate a government program; implementation of the proposed rule does not require the creation or elimination of employee positions; the implementation of the proposed rule does not require an increase or decrease in future appropriations; the proposed rule does not require an increase or decrease in fees paid to the agency; the proposed rule creates a new regulation; the proposed rule expands an existing regulation; the proposed rule increases the number of individuals subject to it; the proposed rule does not adversely affect the state's economy.

Comments on the proposed new rule may be submitted to W. Boyd Bush, Jr., Ed.D., Executive Director, 333 Guadalupe, Suite 3-800, Austin, Texas 78701, by Fax to (512) 305-9364, or by email to official_rules_comments@tsbde.texas.gov, no later than 30 days from the date that the proposed rule is published in the Texas Register.

This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §258.1554(b), which authorizes the Board to establish limitations on the administration of anesthesia by a permit holder to a pediatric or high-risk patient.

This proposed rule implements Texas Occupations Code §258.1554. W. Boyd Bush, Jr., has determined that this rule is necessary to protect the health, safety, and welfare of the residents of Texas, and as such, Texas Government Code §2001.0045(c)(6) is applicable to this proposed rule.

§110.16.Sedation/Anesthesia of High-Risk Patients.

(a) For purposes of this rule, the following definitions apply:

(1) "High-risk patient" means a patient who has a level 3 or 4 classification according to the American Society of Anesthesiologists Physical Status Classification System (ASA).

(2) "Board-approved education program" means an in-person or online program provided by a recognized continuing education provider pursuant to Board rule 22 TAC §104.2 of this title (relating to Providers) and any subsequent amendments.

(b) For the purposes of this chapter, ASA classifications are defined as follows:

(1) ASA I: a normal healthy patient.

(2) ASA II: a patient with mild systemic disease.

(3) ASA III: a patient with severe systemic disease.

(4) ASA IV: a patient with severe systemic disease that is a constant threat to life.

(c) On or after September 1, 2019, a permit holder may not administer sedation/anesthesia under a level 2, level 3, or level 4 permit to a high-risk patient unless the permit holder has completed the requirements of paragraph (1) or (2) of this subsection. Permit holders must have:

(1) completed a university or hospital-based residency at least 12 months in length. All permit holders completing a university or hospital-based residency after September 1, 2019, must confirm that during the residency, the permit holder completed satisfactory management of sedation/anesthesia in at least ten (10) cases involving high-risk patients sedated/anesthetized at the highest level of permit held. At least five (5) of the cases must involve the hands-on administration of sedation/anesthesia as the primary provider. No more than five (5) cases may be observed. The ten (10) cases must involve either live patients and/or high-fidelity emergency sedation/anesthesia simulations; or

(2) completed a board-approved education program that includes a minimum of sixteen (16) hours of didactic training and instruction in sedation/anesthesia of high-risk patients. The entire board-approved education program, including all didactic and clinical requirements, must be completed within a two-year period of beginning the Board-approved program. Successful completion of the program must include passing an evaluation to demonstrate satisfactory completion of the course requirements. Didactic education must include:

(A) pre-anesthetic patient assessment/evaluation for medically compromised and geriatric patients;

(B) physical evaluation and medical history of high-risk patients, including obesity, pregnancy, and obstructive sleep apnea syndrome, cardiovascular disease, metabolic or genetic disorders, hematologic disorders, and other systemic diseases/conditions affecting sedation/anesthesia;

(C) high-risk patient anatomical and/or physiological differences;

(D) medical consultations;

(E) high-risk respiratory assessment, including airway anatomy, physiology, and management;

(F) informed consent by patient, parent, or guardian;

(G) sedation/anesthesia pharmacology;

(H) sedation/anesthesia management of patients identified with special health care needs;

(I) high-risk patient monitoring;

(J) peri-operative complications and emergencies;

(K) emergency management of high-risk patients, including high-risk anesthesia equipment and resuscitation supplies;

(L) sedation/anesthesia technique;

(M) sedation/anesthesia record keeping;

(N) patient recovery and discharge;

(O) appropriate patient selection; and

(P) permit holders shall have completed satisfactory management of sedation/anesthesia in at least ten (10) cases involving high-risk patients sedated/anesthetized at the highest level of permit held. At least five (5) of the cases must involve the hands-on administration of sedation/anesthesia as the primary provider. No more than five (5) cases may be observed. The ten (10) cases must involve either live patients and/or high-fidelity emergency sedation/anesthesia simulations. All of the cases must be performed and documented under the on-site instruction and direct supervision of a licensed dentist authorized to administer sedation/anesthesia to high-risk patients.

(d) A permit holder is authorized to administer sedation/anesthesia under a level 2, level 3, or level 4 permit to a high-risk patient if they have completed the requirements above and have requested and received authorization from the Board to administer sedation/anesthesia to high-risk patients. Board staff shall promulgate appropriate forms for permit holders qualifying under subsection (c)(1) and (c)(2) of section. The permit holder must attest to their advanced training satisfying the requirements of subsection (c)(1) or (c)(2) of this section, and will be required to produce proof of completion as part of a permit inspection or an investigation of a complaint involving sedation/anesthesia of a high-risk patient.

(e) The education hours described in subsection (c)(2) of this section can be applied towards the permit holder's continuing education requirement for maintaining a sedation/anesthesia permit.

(f) If qualifying under subsection (c)(2) of this section, the didactic and clinical training described in subsection (c)(2) of this section may not be fulfilled by the same didactic and clinical training used to fulfill the requirements for initial sedation/anesthesia permit issuance.

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 June 8, 2018.

TRD-201802559

W. Boyd Bush, Jr.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: July 22, 2018

For further information, please call: (512) 475-0987


22 TAC §110.17

The State Board of Dental Examiners (Board) proposes new rule §110.17, concerning Sedation/Anesthesia of Pediatric Patients. This new rule will require dentists to undergo additional didactic and clinical training prior to providing levels 2, 3, or 4 sedation/anesthesia to pediatric patients. This rule is being proposed to comply with the requirements of S.B. 313.

W. Boyd Bush, Jr., Ed.D., Executive Director, has determined that for the first five-year period the proposed rule is in effect, there will not be any fiscal implications for state or local government as a result of enforcing or administering the rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the agency's compliance with legislative directives and increased public safety as a result of increased training requirements for dentists.

W. Boyd Bush, Jr. has also determined that an economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this rule. The Board has approximately 3,400 permit holders affected by this rule across the State of Texas. Many of these permit holders are considered small or micro-businesses in that they are independent practitioner-business owners employing fewer than 100 employees. Many of them practice in rural communities, defined as municipalities with fewer than 25,000 people. Small businesses, micro-businesses, and rural communities will almost certainly experience an adverse economic effect from this proposed rule. Informal comments presented at stakeholder and committee meetings estimate the cost of the new additional training program will be in the range of $10-20,000. Permit holders will have to take at least 16 hours out of their schedule for the didactic training and obtaining the necessary clinical training may likely require even further time, travel, and expense. As for rural communities, it is an inevitable consequence of this regulation that there will be fewer providers levels 2, 3, and 4 sedation/anesthesia for these patients throughout the State of Texas. There are already fewer of these providers in rural areas than in urban areas and presumably that gap will grow wider due to the costs associated with this regulation. A provider in a rural area who only performs these procedures a few times a year likely will not go through the additional training required to continue doing so. As a result, rural patients may have to seek out someone else who is qualified to perform the procedures, likely in a more urban setting that will require additional time and expense. As such, rural communities will likely experience an adverse economic impact from this proposed regulation. That said, this rule is being proposed due to a legislative mandate in Senate Bill 313 (85th Legislature) that requires these practitioners to undergo "additional didactic and clinical training," as defined by the Board. The legislature has mandated further training to protect the health and safety of all Texans. The Board was charged with defining "additional training" and after many discussions about alternatives they arrived at the requirements that are being proposed. The proposed requirements could be higher or lower, but either way, the legislature has mandated "additional training" and any amount of "additional training" is going to have an adverse economic effect on small businesses and rural communities. It would not have been acceptable to the Board or the legislature to have proposed one standard for rural providers and another for urban providers. The Board believes the proposed rule strikes a good balance between protecting the public health and safety and keeping the new regulation economically feasible for those who wish to provide or receive this service.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: the rule does not create or eliminate a government program; implementation of the proposed rule does not require the creation or elimination of employee positions; the implementation of the proposed rule does not require an increase or decrease in future appropriations; the proposed rule does not require an increase or decrease in fees paid to the agency; the proposed rule creates a new regulation; the proposed rule expands an existing regulation; the proposed rule increases the number of individuals subject to it; the proposed rule does not adversely affect the state's economy.

Comments on the proposed new rule may be submitted to W. Boyd Bush, Jr., Ed.D., Executive Director, 333 Guadalupe, Suite 3-800, Austin, Texas 78701, by Fax to (512) 305-9364, or by email to official_rules_comments@tsbde.texas.gov no later than 30 days from the date that the proposed rule is published in the Texas Register.

This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §258.1554(b), which authorizes the Board to establish limitations on the administration of anesthesia by a permit holder to a pediatric or high-risk patient.

This proposed rule implements Texas Occupations Code §258.1554. W. Boyd Bush, Jr., has determined that this rule is necessary to protect the health, safety, and welfare of the residents of Texas, and as such, Texas Government Code 2001.0045(c)(6) is applicable to this proposed rule.

§110.17.Sedation/Anesthesia of Pediatric Patients.

(a) For purposes of this rule, the following definitions apply:

(1) "Pediatric patient" means a patient younger than 13 years of age.

(2) "Board-approved education program" means an in-person or online program provided by a recognized continuing education provider pursuant to Board rule 22 Tex. Admin. Code §104.2 and any subsequent amendments.

(b) On or after September 1, 2019, a permit holder may not administer sedation/anesthesia under a level 2, level 3, or level 4 permit to a pediatric patient unless the permit holder has completed the requirements of paragraphs (1) or (2) of this subsection. Permit holders must have:

(1) completed a university or hospital-based residency at least 12 months in length. All permit holders completing a university or hospital-based residency after September 1, 2019, must confirm that during the residency, the permit holder completed satisfactory management of sedation/anesthesia in at least fifteen (15) cases involving pediatric patients sedated/anesthetized at the highest level of permit held. The cases must include at least three (3) live cases in which the permit holder is the primary sedation/anesthesia provider, no more than seven (7) cases observed on live patients, and no more than five (5) cases performed as part of a hands-on high-fidelity sedation simulation center or program; or

(2) completed a board-approved education program that includes a minimum of sixteen (16) hours of didactic training and instruction in sedation/anesthesia of pediatric patients. The entire board-approved education program, including all didactic and clinical requirements, must be completed within a two-year period of beginning the Board-approved program. Successful completion of the program must include passing an evaluation to demonstrate satisfactory completion of the course requirements. Didactic education must include:

(A) pre-anesthetic patient assessment/evaluation for medically compromised and geriatric patients;

(B) physical evaluation and medical history of pediatric patients, including obesity, limited neck mobility, micro/retrognathia, macroglossia, Mallampati score, and limited oral opening;

(C) pediatric anatomical and/or physiological differences;

(D) pediatric respiratory assessment, including airway anatomy, physiology, and management;

(E) informed consent by parent, guardian, or care-giver;

(F) sedation/anesthesia pharmacology;

(G) sedation/anesthesia management of pediatric patients;

(H) pediatric patient monitoring;

(I) peri-operative complications and emergencies;

(J) emergency management of pediatric patients, including pediatric anesthesia equipment and resuscitation supplies;

(K) sedation/anesthesia technique;

(L) sedation/anesthesia record keeping;

(M) patient recovery and discharge;

(N) pediatric case selection and reference behavior scale; and

(O) permit holders shall have completed satisfactory management of sedation/anesthesia in at least fifteen (15) cases involving pediatric patients sedated/anesthetized at the highest level of permit held. The cases must include at least three (3) live cases in which the permit holder is the primary sedation/anesthesia provider, no more than seven (7) cases observed on live patients, and no more than five (5) cases performed as part of a hands-on high-fidelity sedation simulation center or program. All of the cases must be performed and documented under the on-site instruction and direct supervision of a licensed dentist authorized to administer sedation/anesthesia to pediatric patients.

(c) A permit holder is authorized to administer sedation/anesthesia under a level 2, level 3, or level 4 permit to a pediatric patient if they have completed the requirements above and have requested and received authorization from the Board to administer sedation/anesthesia to pediatric patients. Board staff shall promulgate appropriate forms for permit holders qualifying under subsection (b)(1) and (b)(2) of this section. The permit holder must attest to their advanced training satisfying the requirements of subsection (b)(1) or (b)(2) of this section, and will be required to produce proof of completion as part of a permit inspection or an investigation of a complaint involving sedation/anesthesia of a pediatric patient.

(d) The education hours described in subsection (b)(2) of this section can be applied towards the permit holder's continuing education requirement for maintaining a sedation/anesthesia permit.

(e) If qualifying under subsection (b)(2) of this section, the didactic and clinical training described in subsection (b)(2) of this section may not be fulfilled by the same didactic and clinical training used to fulfill the requirements for initial sedation/anesthesia permit issuance.

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 June 8, 2018.

TRD-201802560

W. Boyd Bush, Jr.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: July 22, 2018

For further information, please call: (512) 475-0987


22 TAC §110.18

The State Board of Dental Examiners (Board) proposes new rule §110.18, concerning the inspection of sedation/anesthesia providers. This new rule will require permit holders to undergo compliance inspections within one year of receiving a level 2, 3, or 4 sedation/anesthesia permit, as well as an inspection for all other level 2, 3, or 4 permit holders by September 1, 2022. This rule is being proposed to comply with the requirements of S.B. 313 regarding the inspections of sedation/anesthesia providers.

W. Boyd Bush, Jr., Ed.D., Executive Director, has determined that for the first five-year period the proposed rule is in effect, there will not be any fiscal implications for state or local government as a result of enforcing or administering the rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the agency's compliance with legislative directives and increased public safety as a result of the inspection and confirmation of compliance for permit holding dentists.

W. Boyd Bush, Jr. has also determined that an economic impact statement and regulatory flexibility analysis for small businesses and micro-businesses is necessary for this rule. The Board currently has approximately 3,400 permit holders affected by this rule across the State of Texas. Many of these permit holders are considered small or micro-businesses in that they are independent practitioner-business owners employing fewer than 100 employees. Small businesses and micro-businesses, will almost certainly experience an adverse economic effect from this proposed rule. Many permit holders operate in small or micro-business formats, as their offices are solo or small dental practices. Preparation for inspections and possible downtime during the inspection process may force these providers to sacrifice some income from patients that would have been scheduled during the inspection time. However, this rule is being proposed due to a legislative mandate in Senate Bill 313 (85th Legislature) that requires these practitioners to undergo inspections as necessary to enforce the requirements of the Dental Practice Act and Board rules. The legislature has mandated inspections to protect the health and safety of all Texans. The Board was charged with developing a policy for inspections and developing the training and policies necessary to implement the inspection program, and after many discussions about alternatives they arrived at the requirements that are being proposed. The Board believes the proposed rule strikes a good balance between protecting the public health and safety and avoiding onerous inspection requirements that would impact permit holders' ability to provide services to the public.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: the rule does not create or eliminate a government program; implementation of the proposed rule does not require the creation or elimination of employee positions; the implementation of the proposed rule does not require an increase or decrease in future appropriations; the proposed rule does require an increase in fees paid to the agency; the proposed rule creates a new regulation; the proposed rule expands an existing regulation; the proposed rule increases the number of individuals subject to it; the proposed rule does not adversely affect the state's economy.

Comments on the proposed new rule may be submitted to W. Boyd Bush, Jr., Ed.D., Executive Director, 333 Guadalupe, Suite 3-800, Austin, Texas 78701, by Fax to (512) 305-9364, or by email to official_rules_comments@tsbde.texas.gov no later than 30 days from the date that the proposed rule is published in the Texas Register.

This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §258.156, which authorizes the Board to establish an inspection program for all providers of level 2, 3 or 4 sedation/anesthesia permits.

This proposed rule implements requirements of S.B. 313 and Texas Occupations Code §258.156(b)-(h). W. Boyd Bush, Jr., has determined that this rule is necessary to protect the health, safety, and welfare of the residents of Texas, and as such, Texas Government Code §2001.0045(c)(6) is applicable to this proposed rule.

§110.18.Inspection of Sedation/Anesthesia Providers.

(a) The Board may conduct inspections to enforce Chapter 110 of the Board's rules, including inspections of a licensee, an office site, equipment, a facility, and any document required by Board rules. The inspections shall not identify violations outside the applicable sedation/anesthesia rules in effect for each permit level at the time of the inspection. The Board may employ Board staff or contract with another state agency or qualified person to conduct these inspections.

(b) Unless it would jeopardize an ongoing investigation, the Board shall provide at least ten business days' notice before conducting an on-site inspection under this section.

(c) Regardless of issue date, all level 2, 3 and 4 permit holders will be subject to at least one inspection prior to September 1, 2022. All level 2, 3, and 4 permit holders who received their initial permit after March 1, 2018, must be inspected within a year of receiving their permit.

(d) Compliance/Tier 1 inspections: The initial inspection will be a compliance inspection, in which a Board staff member will evaluate the permit holder's compliance with the Board's rules through completing a checklist and auditing one sedation/anesthesia record of the inspector's choosing that was completed prior to the date the Board notified the licensee of the inspection. The record shall be of treatment for the highest level of sedation/anesthesia permit held by the permit holder, and will apply the Board rules in effect at the time the patient was treated. The inspector shall be a member of Board staff and will receive training in recognizing the checklist requirements and in evaluating sedation/anesthesia records. If the inspection results in the identification of a violation of the Board's rules found in Chapter 110, the permit holder must immediately cease providing sedation/anesthesia services until satisfactory proof is provided to Board staff that the violation has been corrected. Board staff shall provide contact information for both an inspector and supervisor of the inspector so that the permit holder may provide proof of remediation as soon as possible. Any violation of this cease and desist requirement shall represent grounds for disciplinary action. A failure by Board staff to respond within two business days to permit holder's satisfactory proof of remediation shall represent an affirmative defense to disciplinary action. Additionally, the permit holder shall pay an amount of not more than five hundred dollars ($500.00) as necessary to cover the expenses of additional review and inspection by Board staff as a result of any violations identified during the initial inspection. The inspection checklist can be previewed here:

Figure: 22 TAC §110.18(d) (.pdf)

(e) Risk-based/Tier 2 inspections: A permit holder with a violation on a compliance/tier 1 inspection that is not remedied within thirty (30) days shall be referred to a risk-based inspection. Additionally, a Board member sitting on an informal settlement conference panel pursuant to Tex. Occ. Code §263.0072 may refer a permit holder to a risk-based inspection. The risk-based inspection will include the same factors as a compliance inspection, as well as a competency evaluation consisting of an audit of five sedation/anesthesia records of the inspector's choosing. The records shall be of treatment records for the highest level of sedation/anesthesia permit held by the permit holder, and shall apply the Board rules in effect at the time the patient was treated. Review of the five sedation/anesthesia records shall be performed by members of the Board's dental review panel process pursuant to Tex. Occ. Code §255.0065 who currently hold the same or higher level of sedation/anesthesia permit. The dental review panel reviewer shall prepare a report and note any violations or concerns with the permit holder's competency, and the report shall be reviewed following the procedure described in Tex. Occ. Code §255.0067. Any violation found during the risk-based inspection may result in the filing of a complaint and complaint resolution pursuant to the Board's informal disposition process in 22 Texas Administrative Code §107.63. The Executive Committee of the Board may order the emergency temporary suspension of a permit if the risk-based inspection reveals evidence of a clear, imminent, or continuing threat to the health or well-being of the public.

(f) Inactive status: A permit holder may forego an inspection if they submit a notarized, Board-issued affidavit that they will not administer levels 2, 3, or 4 sedation/anesthesia until first notifying the Board in writing that they wish to resume those activities. A permit holder must complete a compliance/Tier 1 inspection prior to resuming the administration of sedation/anesthesia at the inactive permit level. The permit holder must comply with continuing education and any other permit requirements during this time. During the period of inactive status, a permit holder may not delegate any inactive-status level of sedation/anesthesia to a certified registered nurse anesthetist or any other dental or medical professional except a dentist with a permit issued by the Board for the procedure being performed or a physician anesthesiologist licensed by the Texas Medical Board. If the permit holder is later found to have administered or delegated the administration of level 2, 3, or 4 sedation/anesthesia while in inactive status, the Board shall pursue revocation of their dental license.

(g) Exempt-location status: The Board shall not inspect a level 2, 3, or 4 permit holder who provides those services exclusively in a state-licensed hospital or state-licensed ambulatory surgery center. The permit holder must attest to that fact with a notarized, Board-issued affidavit and may not provide those services at a non-exempt location until first notifying the Board in writing and successfully completing a compliance/Tier 1 inspection. During the period of exempt-location status, a permit holder may not delegate the administration of any level of sedation/anesthesia to a dental or medical professional outside a state-licensed hospital or state-licensed ambulatory surgery center. If they are later found to have administered or delegated the administration of level 2, 3, or 4 sedation/anesthesia in a non-exempt location, the Board shall pursue revocation of their dental license.

(h) Group practice inspections. The Board shall permit group practices to request an inspection of all permit holders in a single location during one inspection visit. Permit holders shall inform Board staff upon receiving notice of an inspection their wish to receive a combined group practice inspection, and Board staff shall accommodate this request as feasible while ensuring a group inspection shall not jeopardize an ongoing investigation. Board staff shall ensure that group practice inspection requests do not create unnecessary delays to the completion of the inspection process and may decline the request as needed to ensure timely completion of all scheduled inspections.

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 June 8, 2018.

TRD-201802561

W. Boyd Bush, Jr.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: July 22, 2018

For further information, please call: (512) 475-0987


CHAPTER 114. EXTENSION OF DUTIES OF AUXILIARY PERSONNEL--DENTAL ASSISTANTS

22 TAC §114.12

The State Board of Dental Examiners (Board) proposes amended rule §114.12, concerning the continuing education requirements applicable to registered dental assistants. This amendment to the existing rule will clarify the continuing education requirements applicable to registered dental assistants and the requirements applicable to the courses. This rule is being proposed to comply with the requirements of S.B. 313.

W. Boyd Bush, Jr., Ed.D., Executive Director, has determined that for the first five-year period the proposed rule is in effect, there will not be any fiscal implications for state or local government as a result of enforcing or administering the rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the agency's compliance with legislative directives, the clarification and streamlining of registered dental assistant continuing education, and the safety and welfare of the public by ensuring registered dental assistants complete high quality continuing education on a regular basis.

W. Boyd Bush, Jr. has determined that no economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this rule.

W. Boyd Bush, Jr. has also determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: the rule does not create or eliminate a government program; implementation of the proposed rule does not require the creation or elimination of employee positions; the implementation of the proposed rule does not require an increase or decrease in future appropriations; the proposed rule does not require an increase or decrease in fees paid to the agency; the proposed rule does not create a new regulation; the proposed rule does not expand an existing regulation; the proposed rule does not increase the number of individuals subject to it; the proposed rule does not adversely affect the state's economy.

Comments on the proposed new rule may be submitted to W. Boyd Bush, Jr., Ed.D., Executive Director, 333 Guadalupe, Suite 3-800, Austin, Texas 78701, by Fax to (512) 305-9364, or by email to official_rules_comments@tsbde.texas.gov no later than 30 days from the date that the proposed rule is published in the Texas Register.

This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §265.008, which directs the Board to adopt rules establishing continuing education requirements for registered dental assistants.

This proposed rule implements Texas Occupations Code §265.008.

§114.12.Continuing Education for Certificate Holders.

(a) To renew a certificate of registration issued under this chapter, a dental assistant must complete six (6) hours of continuing education each year in areas covering dental assistant duties.

[(b) A dental assistant holding two or more certificates authorized by this chapter is required to complete twelve (12) hours of continuing education each year to renew all of the certificates held by the assistant.]

(b) [(c)] A dental assistant may fulfill the continuing education requirement through board-approved self-study, interactive computer courses, or lecture courses. All continuing education must be offered by providers approved under 22 Texas Administrative Code §104.2.

[(d) Dental assistants shall select and participate in continuing education courses offered by or endorsed by:]

[(1) dental schools, dental hygiene schools, or dental assisting schools that have been accredited by the Commission on Dental Accreditation of the American Dental Association; or]

[(2) nationally recognized dental, dental hygiene or dental assisting organizations.]

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 June 8, 2018.

TRD-201802557

W. Boyd Bush, Jr.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: July 22, 2018

For further information, please call: (512) 475-0987


PART 39. TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS

CHAPTER 850. TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS

SUBCHAPTER C. FEES

22 TAC §850.82

The Texas Board of Professional Geoscientists (TBPG) proposes an amendment concerning the licensure and regulation of Professional Geoscientists in Texas. TBPG proposes an amendment to 22 TAC §850.82, concerning dishonored payment.

BACKGROUND AND PURPOSE

TBPG conducted its four-year rule review in 2018, and, as a result of the review process, now proposes a change to its rules for refinement and clarity.

SECTION SUMMARY

Proposed amendment to §850.82, makes use of the defined term "licensee," adding the word "licensee," and removing the terms, "license, certification or registration holder because a licensee is a defined term in §850.10. In §850.82, "licensee is defined as, "An individual holding a current Professional Geoscientist license, GIT certificate, or firm registration.

FISCAL NOTE

STATE AND LOCAL GOVERNMENT

Charles Horton, Executive Director of the Texas Board of Professional Geoscientists, has determined that for each fiscal year of the first five years the section is in effect there is no cost to the state and local governments as a result of enforcing or administering the section as proposed. There is no anticipated negative impact on state or local government. There are no estimated reductions in cost to the state and to local governments as a result of enforcing or administering the proposed section. There is no estimated loss or increase in revenue to the state or local governments as a result of enforcing or administering this section. This proposal has no foreseeable implications relating to cost or revenues of the state or local governments.

PUBLIC BENEFIT AND COST

Mr. Horton has also determined that for each year of the first five years the section is in effect, the public will benefit from adoption of the section. The public benefit anticipated as a result of enforcing or administering the section includes the consistent use of terms defined in the rules, which adds to the clarity of the amended rule. There will be no anticipated economic cost to individuals who are required to comply with the proposed section.

SMALL, MICRO-BUSINESS, LOCAL ECONOMY, AND RURAL COMMUNITIES ECONOMIC IMPACT ANALYSIS

Mr. Horton has determined that the proposed rule will not have an adverse effect on small businesses, micro-businesses, local economy, or rural communities. Consequently, neither an economic impact statement, a local employment impact statement, nor a regulatory flexibility analysis is required.

GOVERNMENT GROWTH IMPACT STATEMENT

During the first five years that the amendment would be in effect:

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

(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 do not require an increase or decrease in fees paid to the agency;

(5) the proposed rules do not create a new regulation;

(6) the proposed rules do not expand, limit, or repeal an existing regulation;

(7) the proposed rules do not increase or decrease the number of individuals subject to the rules' applicability; and

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

REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES

Mr. Horton has determined that this proposal is not a "major environmental rule as defined by Government Code, §2001.0225. "Major environmental rule is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. Although Professional Geoscientists and Registered Geoscience Firms play a key role in environmental protection for the state of Texas, this proposal is not specifically intended to protect the environment nor reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Comments on the proposed amendment may be submitted in writing to Charles Horton, Executive Director, Texas Board of Professional Geoscientists, 333 Guadalupe Street, Tower I-530, Austin, Texas 78701 or by mail to P.O. Box 13225, Austin, Texas 78711 or by e-mail to chorton@tbpg.texas.gov. Please indicate "Comments on Proposed Amendment in the subject line of all e-mails submitted. Please submit comments within 30 days following publication of the proposal in the Texas Register.

STATUTORY AUTHORITY

This amendment is proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules and regulations consistent with the Act as necessary for the performance of its duties, and the regulation of the practice of geoscience in this state; and Occupations Code §1002.154, which provides that Board shall enforce the Act.

It affects the Texas Geoscience Practice Act, Occupations Code §1002.151 and §1002.154.

§850.82.Dishonored Payment.

(a) If a payment drawn to the TBPG for an initial license, certification or registration or the renewal of a license, certification, or registration is dishonored by a payor, the TBPG shall take the following actions:

(1) Notify the applicant or licensee [license, certification or registration holder] of the issue and request resolution of the payment, plus the insufficient funds fee in §851.80 of this title within 30 days;

(2) Invalidate any new or renewed license, certification, or registration that was processed based on the payment that was dishonored, if the payment has not been resolved within 30 days of the sending or receipt of the notice, as applicable.

(b) any other payment to the TBPG is dishonored by a payor, the TBPG will take appropriate steps as determined by the Executive Director.

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 June 8, 2018.

TRD-201802548

Charles Horton

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: July 22, 2018

For further information, please call: (512) 936-4405