TITLE 25. HEALTH SERVICES

PART 1. DEPARTMENT OF STATE HEALTH SERVICES

CHAPTER 37. MATERNAL AND INFANT HEALTH SERVICES

SUBCHAPTER G. SPINAL SCREENING PROGRAM

25 TAC §§37.142 - 37.145

The Executive Commissioner of the Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes amendments to §§37.142 - 37.145, concerning the Spinal Screening Program (program).

BACKGROUND AND PURPOSE

DSHS administers the state program designed to identify abnormal spinal curvature in certain school-age children attending public and private schools, in accordance with Health and Safety Code, Chapter 37. The rules implement and outline the appropriate standards for spinal screening in school-age children. The program is responsible for the training and certification of individuals who conduct spinal screenings in the schools. The schools are responsible for ensuring that enrolled children comply with the screening requirements of this subchapter.

The proposed amendments will update the rules in accordance with House Bill (H.B.) 1076, 85th Legislature, Regular Session, 2017. H.B. 1076 requires rules to be adopted with consideration of the most recent nationally accepted and peer-reviewed scientific research when determining the appropriate ages for conducting spinal screening. H.B. 1076 is effective on September 1, 2017, and will be implemented during the 2018-2019 school year.

SECTION-BY-SECTION SUMMARY

The proposed amendments to §37.142 include adding and removing definitions for clarity and consistency. A definition for the term Chief Administrator is added and will be defined as the principal of each school, as defined in Title 19, Education, of the Texas Administrative Code. This will clarify responsibility for ensuring compliance with screening requirements in accordance with Health and Safety Code, Chapter 37, §37.002. The definitions for American Academy of Orthopaedic Surgeons (AAOS), Forward-bend test, and Scoliosis Inclinometer are proposed for removal, as they are no longer referenced in this subchapter.

The proposed amendment to §37.143(a) removes the language that specifies spinal screening is required in grades six and nine. H.B. 1076 allows for consideration of the most recent nationally accepted and peer-reviewed scientific research when determining the appropriate ages for conducting spinal screening. The current rule references a position statement from 2007 and has an invalid hyperlink. DSHS proposes removing the hyperlink reference and paragraphs (1) - (5) from the rule and create a policy for the most current recommended spinal screening information on the DSHS website. In 2015, the Scoliosis Research Society (SRS), AAOS, Pediatric Orthopedic Society of North America (POSNA) and American Academy of Pediatrics (AAP) released a joint position statement and believe that screening examinations for spine deformity should be part of the medical home preventative services visit for females at age 10 and 12 years, and males once at age 13 or 14 years. Placing nationally accepted practices in policy will allow DSHS flexibility to comply with current national recommendations and guidelines for spinal screening, while still maintaining oversight over the training and certification requirements of screeners.

The proposed amendment to §37.144 adds new subsection (a) related to the process to notify parents of the spinal screening requirement, process, procedure, and method to decline, in accordance with H.B. 1076. Current subsections (a) - (e) will be renumbered to subsections (b) - (f).

The proposed amendment to renumbered subsection (c)(1), removes the language related to the requirement of spinal screening in grades six and nine and was replaced with "who meet the criteria outlined in department policy." Language in renumbered §37.144(c)(1) allows for the screening requirement to be met if a parent, managing conservator, or guardian substitutes a professional examination as defined in §37.142, relating to Definitions.

Current language in §37.144(b)(2), renumbered to subsection (c)(2), is recommended for deletion to simplify the rule.

The proposed amendment to renumbered §37.144(c)(3) removes the language related to grades ten, eleven, or twelve, and allows any child the opportunity for spinal screening if the student does not have a record of having been screened previously.

The proposed amendment to §37.145(b)(3) will allow spinal screening records to transfer between schools without written consent. Texas Health and Safety Code, Chapter 37, related to Abnormal Spinal Curvature in Children, does not require consent to perform the screen or to report results. Allowing schools to transfer spinal screening records between schools, will streamline student transfers and align the process for transfer of records with Texas Health and Safety Code, §36.006(c), related to Special Senses and Communication Disorders; the Texas Education Code, §25.002, related to Transfer, Admission and Attendance; and Texas Education Code, §38.002(b), which do not require written consent for the transfer of screening records between schools.

The proposed amendment to §37.145(c) is necessary to update the mailing address for the Vision, Hearing, and Spinal Screening Program at DSHS.

FISCAL NOTE

Mr. Felipe Rocha, Director, Public Health Screening and Services Coordination Section, has determined that for each year of the first five years the section will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

SMALL AND MICRO-BUSINESS IMPACT ANALYSIS

Mr. Rocha has also determined there will be no adverse economic impact on micro-businesses or small businesses required to comply with the section as proposed. This was determined by interpretation of the rule that small businesses and micro-businesses will not be required to alter their business practices.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no fiscal impact on local employment.

PUBLIC BENEFIT

Mr. Rocha has also determined the public will benefit from adoption of the sections. The anticipated public benefit is assurance that required spinal screening for school-age children would be performed according to the most recent nationally accepted recommendations, as mandated by law.

TAKINGS IMPACT ASSESSMENT

DSHS has determined that the proposed amendment 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, does not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted in writing to Elijah Brown, Vision, Hearing, and Spinal Screening, Public Health Screening and Services Coordination Section, Department of State Health Services, P.O. Box 149347, Austin, Texas 78714-9347; by fax to (512) 776-7414; or by email to vhssprogram@dshs.texas.gov within 30 days of publication of this proposal in the Texas Register. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 25R049" in the subject line.

STATUTORY AUTHORITY

The amendments are authorized by Health and Safety Code, Chapter 37, which mandates adoption of rules necessary to carry out the program; and by 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 of and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The amendments affect Government Code, Chapter 531; and Health and Safety Code, Chapters 37 and 1001.

§37.142.Definitions.

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

(1) (No change.)

[(2) American Academy of Orthopaedic Surgeons (AAOS)--A nationally-recognized professional body which develops musculoskeletal health guidelines as part of the organization's research and quality goals.]

(2) [(3)] Certification--The process by which the Department of State Health Services (department) trains individuals to conduct spinal screening as well as to then provide training screening procedures.

(3) Chief Administrator--The principal (or designee) of a school as defined by the Texas Education Agency, Title 19, Part 2, Chapter 149, Subchapter BB.

(4) (No change.)

[(5) Forward-bend test--A screening procedure to determine whether a child may have an abnormal spinal curvature.]

(5) [(6)] Licensed professional--An individual who is appropriately licensed under state law, including physicians, chiropractors, physical therapists, and registered nurses, and has completed a course of study in physical assessment.

(6) [(7)] Professional examination--A diagnostic evaluation performed by an appropriately licensed professional whose expertise addresses the diagnostic needs of the individual identified as having a possible abnormal spinal curvature. A professional examination is one that is performed according to the requirements of this subchapter and of Texas Health and Safety Code, Chapter 37.

(7) [(8)] School--An educational institution, public or private, that admits children who are five through twenty-one years of age, which includes an individual school campus.

[(9) Scoliosis inclinometer--An instrument for measuring the clinical deformity of patients with scoliosis. The brand name "Scoliometer" is sometimes used interchangeably.]

(8) [(10)] Screening--A test or battery of tests for rapidly determining the need for a professional examination.

§37.143.Spinal Screening Procedures.

(a) Spinal screening is required, for all children [in grades six and nine] who attend public and private schools, to detect abnormal spinal curvature. Spinal screening, conducted under this subchapter by a person who is not a licensed professional, as the term is defined in this subchapter, must be conducted following the most recent, nationally accepted and peer-reviewed standards for spinal screening. The spinal screening requirements are established in policy located on the department's website at http://www.dshs.texas.gov/spinal [national standards for screening set by the AAOS currently found at http://www.aaos.org/news/bulletin/nov07/clinical5.asp, as they apply to allowable method of screening and age of screening, with the following exceptions].

[(1) The use of a scoliosis inclinometer is optional for spinal screening.]

[(2) If a scoliosis inclinometer is used for spinal screening, a rescreen should be conducted for reading results of 5 to 7 degrees. The rescreen should be conducted within two weeks of the initial screening. A follow-up rescreen should be conducted in six months to one year to determine if the abnormal curvature is increasing.]

[(3) When using a scoliosis inclinometer, results of 7 degrees or more shall be documented as "abnormal findings."]

[(4) If a scoliosis inclinometer is not used for spinal screening, a rescreen should be conducted for abnormal findings. The rescreen should be conducted within two weeks of the initial screening. Abnormal findings detected during the rescreen shall be documented in the child's spinal screening record. The school's chief administrator shall inform the child's parent, managing conservator, or guardian, as specified in §37.144(a) of this title (relating to School Requirements; Department Activities).]

[(5) In accordance with Health and Safety Code, Chapter 37 requirements, children will be screened in grades six and nine instead of the AAOS guidelines.]

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

§37.144.School Requirements; Department Activities.

(a) The chief administrator of each school is responsible for notifying a parent, managing conservator, or guardian of the requirement to conduct spinal screening, the purpose of and the reasons for spinal screening and potential risk to the child if declined, the method used to perform the screening based on §37.143 of this title (related to Spinal Screening Procedures), and the method to decline spinal screening based on subsection (e) of this section. For purposes of this section, the notification may be in electronic format.

(b) [(a)] The chief administrator of each school is responsible for the school maintaining a copy of the screening results and the mailing of a copy of the report to the parent, managing conservator, or guardian of the individual screened if an abnormal spinal curvature is suspected, based on §37.143(a) of this title (relating to Spinal Screening Procedures).

(c) [(b)] The chief administrator of each school shall ensure that each individual admitted to the school complies with the screening requirements of this subchapter, according to the following schedule:

(1) All children enrolled in a public or private school, who meet the criteria outlined in department policy, [in grades six and nine] shall be screened for abnormal spinal curvature before the end of the school year. The screening requirements may also be met by a professional examination as defined in §37.142 of this title (relating to Definitions).

[(2) The screening requirements for children entering grades six and nine may be met if the child has been screened for abnormal spinal curvature during the previous year.]

(2) [(3)] If a child is enrolled within 60 days of the date a school closes for the summer, the child's spinal screening must be conducted within 120 days of the beginning of the following school year.

(3) [(4)] Schools may offer a student [enrolling in grades ten, eleven, or twelve] the opportunity for spinal screening if the student has no record of having been screened previously.

(d) [(c)] A child's parent, managing conservator, or legal guardian, or the individual under the scenarios described in Texas Family Code, §32.003, may execute an affidavit stating that a person, other than the individual secured by the school to conduct screenings at the school, shall conduct the screening as soon as is feasible. The school may admit the child on a provisional basis for up to 60 days, or may deny admission until the screening record(s) are provided to the school. The 60-day time period is from November 30 to January 30 of each school year.

(e) [(d)] A school shall not require a child to be screened if the child's parent, managing conservator, or legal guardian, or the individual under the scenarios described in Texas Family Code, §32.003, submits to the school, on or before the date spinal screening is scheduled, an affidavit in lieu of the screening record(s) stating that the spinal screening conflicts with the tenets and practices of a church or religious denomination of which the affiant is an adherent or member.

(f) [(e)] Only individuals who have completed high school may serve as volunteer assistants during spinal screenings. It is the responsibility of the certified screener to determine how any volunteer assistant(s) will be used during the screening process, consistent with all state and federal confidentiality requirements.

§37.145.Recordkeeping and Reporting.

(a) (No change.)

(b) Schools must comply with the following recordkeeping and reporting requirements:

(1) - (2) (No change.)

(3) Spinal screening records are transferrable between schools without the [if written] consent of the individual or, if the individual is a minor, the minor's parent [their parent], managing conservator, or legal guardian [is obtained].

(4) - (5) (No change.)

(c) All correspondence shall be submitted to the department under this subchapter, with the following contact information (unless otherwise specified): Vision, Hearing and Spinal Screening Program[, Mail Code 1978], Department of State Health Services, P.O. Box 149347, Austin, Texas 78714-9347.

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 August 25, 2017.

TRD-201703330

Lisa Hernandez

General Counsel

Department of State Health Services

Earliest possible date of adoption: October 8, 2017

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