TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 60. PROCEDURAL RULES OF THE COMMISSION AND THE DEPARTMENT

SUBCHAPTER K. LICENSING PROVISIONS RELATED TO MILITARY SERVICE MEMBERS, MILITARY VETERANS, AND MILITARY SPOUSES

16 TAC §§60.501, 60.510, 60.512, 60.514, 60.518, 60.519

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter K, §§60.501, 60.510, 60.512, 60.514 and 60.518, and the proposed new rule at Subchapter K, §60.519, regarding the Procedural Rules of the Commission and the Department, without changes to the proposed text as published in the January 28, 2022, issue of the Texas Register (47 TexReg 224). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The proposed rules under 16 TAC, Chapter 60, Subchapter K, implement Texas Occupations Code, Chapter 51, General Provisions Related to Licensing, and Chapter 55, Licensing of Military Service Members, Military Veterans, and Military Spouses.

The proposed rules are necessary to implement House Bill (HB) 139, 87th Legislature, Regular Session (2021) by updating current definitions in Chapter 55, Occupations Code, and provide for a mandated procedure in rule to allow a non-resident military spouse to obtain license eligibility for occupational licenses that have an in-state residency prerequisite; and to update and remove obsolete references to past bills no longer needed in the current rule subchapter due to subsequent redesignations and reenactments that corrected duplicative statutes passed over the years in separate bills.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §60.501, Definitions, to include "Space Force" as one of the military service branches noted in the "Armed Forces of the United States".

The adopted rules amend §60.510, License Requirements for Applicants with Military Experience, Service, Training, or Education, to delete obsolete legislative bill references.

The adopted rules amend §60.512, Expedited Alternative Licensing Requirements--Substantially Equivalent License, to delete obsolete legislative bill references, and renumbered the subsections accordingly.

The adopted rules amend §60.514, Expedited Alternative Licensing Requirements--Previously Held Texas License, to delete obsolete legislative bill references, and renumbered the subsections accordingly.

The adopted rules amend §60.518, Recognition of Out-of-State License of Military Spouse, to delete obsolete legislative bill references, and clarify rule references.

The adopted rules add new §60.519, License Eligibility-Establishing License Residency Requirement for Out-of-State Military Spouses, which provides an administrative process to establish residency, as required by HB 139, by which a non-resident military spouse could obtain an occupational license that requires in-state residency as a prerequisite for eligibility.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the January 28, 2022, issue of the Texas Register (47 TexReg 224). The deadline for public comments was February 28, 2022. The Department received comments from one interested party on the proposed rules during the 30-day public comment period. The public comments are summarized below.

Comment - The Department received a comment from one interested party in support of the proposed rules.

Department Response - The Department appreciates the comment in support of the proposed rules and no change was made to the proposed rules as a result of this comment.

COMMISSION ACTION

At its meeting on April 5, 2022, the Commission adopted the proposed rules as published in the Texas Register.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 55, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 55. No other statutes, articles, or codes are affected by the adopted rules.

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

Filed with the Office of the Secretary of State on April 11, 2022.

TRD-202201318

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: May 1, 2022

Proposal publication date: January 28, 2022

For further information, please call: (512) 475-4879


CHAPTER 100. GENERAL PROVISIONS FOR HEALTH-RELATED PROGRAMS

The Texas Commission of Licensing and Regulation (Commission) adopts the repeal of existing rules at §§100.1, 100.10, 100.31 and 100.50; new rules at 16 Texas Administrative Code (TAC) Chapter 100, §§100.1 - 100.3, 100.11, 100.60 - 100.65, and 100.70 - 100.72; amendments to existing rules at §§100.20, 100.30, and 100.40; and the addition of subchapter titles to an existing chapter, regarding General Provisions for Health-Related Programs, without changes to the proposed text as published in the January 28, 2022, issue of the Texas Register (47 TexReg 228). These repeals and rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 100 implement Texas Occupations Code Chapter 51, General Provisions.

The adopted rules implement the provisions of Senate Bill (SB) 40, 87th Legislature, Regular Session (2021) and the provisions of Texas Occupations Code §51.501, as well as changes identified by the Texas Department of Licensing and Regulation (Department) as a result of the four-year rule review process conducted under Texas Government Code §2001.039. The adopted rules are necessary to provide guidelines to health professionals for the use of telehealth and remote continuing education, update rule provisions to reflect current Department procedures, amend outdated rule language, and relocate certain podiatry-specific provisions required by Texas Occupations Code §51.2032 to the podiatry chapter. This rulemaking was accompanied by another rulemaking related to 16 TAC Chapter 130, regarding the Podiatry program.

SECTION-BY-SECTION SUMMARY

The adopted rules create new Subchapter A, General Provisions.

The adopted rules repeal §100.1, Applicability, and replace it with a new §100.1. The adopted new rule amends the text of this rule to reflect the applicability of Chapter 100 as revised by this rulemaking.

The adopted rules adopt new §100.2, Definitions. The adopted rules adopt this rule text as a relocation of the existing §100.10, which is being repealed. The text is identical to the current §100.10.

The adopted rules adopt new §100.3, Administrative Penalties and Sanctions, outlining the enforcement authority of the Department for violations of the chapter.

The adopted rules repeal §100.10, Definitions, as the text is being relocated to the proposed §100.2 discussed above.

The adopted rules create new Subchapter B, Certain Health-Related Advisory Boards.

The adopted rules adopt new §100.11, Applicability, outlining the applicability of Subchapter B to certain health-related programs administered by the Department.

The adopted rules amend existing §100.20, Providing Information to Advisory Boards for Certain Health-Related Programs, to update language regarding citations to the Occupations Code and health "programs" instead of "professions."

The adopted rules amend existing §100.30, Rules Regarding Certain Health-Related Programs, to update language regarding citations to the Occupations Code and remove references to an expiration date which is no longer in effect.

The adopted rules repeal existing §100.31, Rules Regarding the Podiatric Medicine Program. The provisions of this rule are being relocated to Chapter 130 of the Department's rules in a concurrent rulemaking.

The adopted rules amend existing §100.40, Enforcement Procedures for Certain Health-Related Programs. The adopted rules add a citation for the rule's authority, remove references to employees of the Department of State Health Services, add subsection (g) regarding the immunity of expert reviewers, and make clarifying changes to the structure of the rule.

The adopted rules repeal existing §100.50, Continuing Education Procedures for the Podiatric Medicine Program. The provisions of this rule are being relocated to Chapter 130 of the Department's rules in a concurrent rulemaking.

The adopted rules create new Subsection C, Telehealth.

The adopted rules adopt new §100.60, Applicability, outlining the applicability of Subchapter C to the health-related programs administered by the Department under Title 3, Occupations Code.

The adopted rules adopt new §100.61, Definitions, providing definitions relevant for the provisions of Subchapter C.

The adopted rules adopt new §100.62, License Requirement, specifying the requirement for a license issued by the Department unless an exemption under other applicable law or rule applies.

The adopted rules adopt new §100.63, Standard of Care, establishing that a telehealth service is subject to the same standard of care as an in-person service and nothing in Subchapter C requires a higher standard of care or otherwise alters the applicable standard of care governing the treatment provided.

The adopted rules adopt new §100.64, Appropriate Client Care and Fraud Prevention, providing guidelines for health professionals providing telehealth services to ensure appropriate client care and fraud prevention.

The adopted rules adopt new §100.65, Client Privacy, requiring health professionals providing telehealth services to protect client privacy as required by federal and state law.

The adopted rules create new Subchapter D, Remote Continuing Education for Health Professionals.

The adopted rules adopt new §100.70, Applicability, outlining the applicability of Subchapter D to the health-related programs administered by the Department under Title 3, Occupations Code.

The adopted rules adopt new §100.71, Definitions, providing definitions relevant for the provisions of Subchapter D.

The adopted rules adopt new §100.72, Remote Continuing Education for Health Professionals, permitting use of remote continuing education if allowed by federal and state law and the Department rules governing the health professional's licensure.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the January 28, 2022, issue of the Texas Register (47 TexReg 228). The deadline for public comments was February 28, 2022. The Department received comments from six interested parties on the proposed rules during the 30-day public comment period. The public comments are summarized below.

Comment--One commenter, the Texas Academy of Nutrition and Dietetics, submitted a comment in support of the proposed rules, highlighting the added flexibility that telehealth will provide for licensed dieticians.

Department Response--The Department appreciates the comment in support of the proposed rules. No changes have been made to the proposed rules as a result of this comment.

Comment--Four commenters, the Texas Podiatric Medical Association and three doctors of podiatric medicine, submitted comments requesting changes to the text of §100.72 as drafted in the proposed rules. The requested changes would place a limit of 20 hours on the continuing education (CE) credit that a doctor of podiatric medicine may obtain through remote continuing education. The comments also request changes in Chapter 130 of the Department's rules to limit the amount of acceptable remote continuing education.

Department Response--The Department disagrees with these comments, and no changes have been made to the proposed rules as a result of these comments. To the extent that these comments request rule changes to §130.44 of the Department's rules, the comments are not related to the substance of the proposed rules located in Chapter 100.

As currently drafted, §100.72 does not alter the acceptable amounts of CE credit that a doctor of podiatric medicine may obtain under §130.44 of the Department's rules. The Department does not license CE providers or individual courses for podiatry CE credit. Instead, the existing rule for podiatry CE accepts courses from a variety of approved providers. Of particular relevance for these comments is the guidance issued by the American Podiatric Medical Association's autonomous accrediting agency for podiatric medical education, the Council on Podiatric Medical Education (CPME). The CPME draws a distinction between "Internet Live Activity" and "Instructional Media" in the CPME 720 Standards and Requirements for Approval of Providers of Continuing Education in Podiatric Medicine guidance document adopted October 2019, as well as updates provided in response to the COVID-19 pandemic. The Department has issued guidance modeled on this information, and the guidance is available at www.tdlr.texas.gov/pod/pod.htm. The guidance issued on August 4, 2020, states "[t]here are no limits on the amount of CME hours that can be obtained through internet live activity. Online courses that are not part of an internet live activity may be acceptable for CME self-study credit. Up to 20 hours of self-study CME may be counted towards the CME requirement."

The adoption of §100.72 will not alter the Department's existing interpretation of acceptable CE credit for the podiatry program, and no other sections of Chapter 100 are relevant to these comments.

Comment--One commenter, the Texas Hearing Aid Association, submitted a comment requesting a change to the proposed text of §100.1 to replace the phrase "this chapter applies except in the event of a conflict with specific program statutes and rules" with the phrase "this chapter applies except where specific program statutes and rules exist." Additionally, the comment requested a change to the proposed text of §100.72(a), revising the text from the proposed "[a] health professional may complete any continuing education requirements through remote continuing education, if permitted by applicable federal and state law and the department rules governing the health professional's licensure," to the commenter's requested language of "[h]ealth professionals may complete their continuing education requirements through remote continuing education that is permitted by applicable federal and state law and the department rules governing a health professional's licensure."

Department Response--The Department disagrees with this comment, and has made no changes to the proposed rules as a result of this comment.

The commenter's first suggested change, in §100.1, attempts to simplify the proposed rules by removing the "individual interpretation" required to determine if a conflict exists between Chapter 100 and the program specific statutes and rules, and replacing it with a simple determination of whether or not program specific statutes and rules "exist." Unfortunately, this change would have the effect of creating substantial confusion and possibly nullifying significant portions of the regulatory framework. Under the commenter's suggested language, the existence of a program-specific rule related to rulemaking, enforcement, telehealth, or continuing education, regardless of content, would presumably negate the effect of Chapter 100, whether or not the provisions of the program-specific rule or Chapter 100 conflicted with each other. This would have significant unintended consequences and would undermine the purpose of the Chapter 100 rules.

The commenter's second suggested change, in §100.72, attempts to restructure the proposed rule text to remove "any," out of concern that some readers may interpret this provision to require approval of any CE course sent into the Department for credit. However, the word "any" is directly before the phrase "continuing education requirements," meaning that the "any" refers to the CE requirements applicable to that health professional, not any available remote CE course that the health professional may find and complete.

In addition, §100.72 includes the condition "if permitted by applicable federal and state law and the department rules governing the health professional's licensure," and §100.70(d) states "[t]o the extent that any provision of this subchapter conflicts with any provision of the laws or rules governing a program in subsection (a), the specific provision governing a program will prevail over this subchapter." If a program-specific rule imposes limitations or restrictions on the type or amount of CE a health professional may use to satisfy applicable requirements, the Chapter 100 proposed rules will not alter the applicability of those existing program-specific CE rules. For example, the hearing instrument fitters and dispensers program has specific rules related to CE in Chapter 112 of the Department's rules, meaning the adoption of these proposed rules will not alter the applicability of the existing program-specific CE rules for acceptable providers and acceptable courses.

COMMISSION ACTION

At its meeting on April 5, 2022, the Commission adopted the proposed rules as published in the Texas Register.

16 TAC §§100.1, 100.10, 100.31, 100.50

STATUTORY AUTHORITY

The adopted repeals are adopted under Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701. No other statutes, articles, or codes are affected by the adopted repeals.

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

Filed with the Office of the Secretary of State on April 11, 2022.

TRD-202201322

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: May 1, 2022

Proposal publication date: January 28, 2022

For further information, please call: (512) 475-4879


SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §§100.1 - 100.3

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701. No other statutes, articles, or codes are affected by the adopted rules.

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

Filed with the Office of the Secretary of State on April 11, 2022.

TRD-202201384

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: May 1, 2022

Proposal publication date: January 28, 2022

For further information, please call: (512) 475-4879


SUBCHAPTER B. CERTAIN HEALTH-RELATED ADVISORY BOARDS

16 TAC §§100.11, 100.20, 100.30, 100.40

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701. No other statutes, articles, or codes are affected by the adopted rules.

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

Filed with the Office of the Secretary of State on April 11, 2022.

TRD-202201385

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: May 1, 2022

Proposal publication date: January 28, 2022

For further information, please call: (512) 475-4879


SUBCHAPTER C. TELEHEALTH

16 TAC §§100.60 - 100.65

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701. No other statutes, articles, or codes are affected by the adopted rules.

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

Filed with the Office of the Secretary of State on April 11, 2022.

TRD-202201386

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: May 1, 2022

Proposal publication date: January 28, 2022

For further information, please call: (512) 475-4879


SUBCHAPTER D. REMOTE CONTINUING EDUCATION FOR HEALTH PROFESSIONALS

16 TAC §§100.70 - 100.72

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 202, 203, 401, 402, 403, 451, 455, 506, 605, and 701. No other statutes, articles, or codes are affected by the adopted rules.

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

Filed with the Office of the Secretary of State on April 11, 2022.

TRD-202201387

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: May 1, 2022

Proposal publication date: January 28, 2022

For further information, please call: (512) 475-4879


PART 9. TEXAS LOTTERY COMMISSION

CHAPTER 401. ADMINISTRATION OF STATE LOTTERY ACT

SUBCHAPTER D. LOTTERY GAME RULES

16 TAC §§401.304, 401.305, 401.307, 401.312, 401.315 - 401.317, 401.320

The Texas Lottery Commission (Commission) adopts amendments to 16 TAC §401.304 (Draw Game Rules (General)), §401.305 ("Lotto Texas" Draw Game Rule), §401.307 ("Pick 3" Draw Game Rule), §401.312 ("Texas Two Step" Draw Game Rule), §401.315 ("Mega Millions" Draw Game Rule), §401.316 ("Daily 4" Draw Game Rule), §401.317 ("Powerball" Draw Game Rule), and §401.320 ("All or Nothing" Draw Game Rule) without changes to the proposed text as published in the February 25, 2022, issue of the Texas Register (47 TexReg 846). The rules will not be republished.

The amendments to §401.305 and §401.317 increase the number of consecutive draws a player can purchase in the Lotto Texas and Powerball draw games, respectively. The amendments also consolidate various provisions regarding a player's verification of numbers and other selection(s) on a lottery ticket from the individual draw game rules (§§401.305, 401.307, 401.312, 401.315, 401.316, 401.317, 401.320) into the general draw game rule (§401.304).

The Commission received no written comments on the proposed amendments during the public comment period.

These amendments are adopted under Texas Government Code §466.015(c), which authorizes the Commission to adopt rules governing the operation of the lottery, and §467.102, which authorizes the Commission to adopt rules for the enforcement and administration of the laws under the Commission's jurisdiction.

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

Filed with the Office of the Secretary of State on April 8, 2022.

TRD-202201302

Bob Biard

General Counsel

Texas Lottery Commission

Effective date: April 28, 2022

Proposal publication date: February 25, 2022

For further information, please call: (512) 344-5392