TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 60. PROCEDURAL RULES OF THE COMMISSION AND THE DEPARTMENT

SUBCHAPTER B. POWERS AND RESPONSIBILITIES

16 TAC §60.24

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter B, §60.24, regarding the Procedural Rules of the Commission and the Department, without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 TexReg 6466). This rule will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 60 implement Texas Occupations Code, Chapter 51, the enabling statute for the Texas Commission of Licensing and Regulation (Commission) and the Texas Department of Licensing and Regulation (Department), and other laws applicable to the Commission and the Department.

Texas Government Code, Chapter 2110 addresses state agency advisory committees. In accordance with Texas Government Code §2110.008, Duration of Advisory Committees, the Commission has adopted 16 TAC §60.24, which lists the agency's advisory boards and committees (advisory boards) and establishes the abolishment date of each of these advisory boards.

The adopted rule updates the list of the Department's advisory boards and their abolishment dates, as applicable. The adopted rule reflects the separate statutory changes that have been made to the Department's program statutes to add programs, to deregulate programs, or to add or repeal advisory boards for certain programs. The adopted rule is necessary to ensure that the rule reflects the current advisory boards and their abolishment dates, if applicable, as required under Texas Government Code §2110.008.

SECTION-BY-SECTION SUMMARY

The adopted rule amends §60.24, Advisory Boards. The adopted rule amends subsection (c) to update the list of the Department's advisory boards. The adopted rule adds advisory boards to subsection (c) with an abolishment date of September 1, 2024, to align with the other advisory boards in the list. The adopted rule also removes advisory boards from the list to reflect the programs that have been deregulated or the advisory boards that have been repealed through separate statutory changes. A few clean-up changes also have been made to this subsection.

The adopted rule adds new subsection (d). A separate list is created for those advisory boards that are specifically exempt from Texas Government Code, Chapter 2110 and do not have a designated abolishment date. The exempt advisory boards have been listed to avoid confusion and to account for the Department's advisory boards.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rule to persons internal and external to the agency. The proposed rule was published in the October 1, 2021, issue of the Texas Register (46 TexReg 6466). The deadline for public comments was November 1, 2021. The Department received comments from one interested party on the proposed rule during the 30-day public comment period. The public comment is summarized below.

Comment--One commenter asked why the Department was getting rid of the barber and cosmetology advisory boards since they play such an important role at TDLR. The commenter stated that these two advisory boards are necessary and expressed concerns that they would be eliminated first in comparison to a few of the other advisory boards.

Department Response--The Department disagrees with the comment. HB 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Commission and the Department, combined the Barbering and Cosmetology programs, created a new advisory board for both barbering and cosmetology, and abolished the separate advisory boards (Article 3). The proposed rule reflects these statutory changes by adding the new Barbering and Cosmetology Advisory Board to the list of boards under subsection (c) and removing the separate Advisory Boards on Barbering and Cosmetology from the list. The Department did not make any changes to the proposed rule as a result of the comment.

COMMISSION ACTION

At its meeting on December 7, 2021, the Commission adopted the proposed rule as published in the Texas Register.

STATUTORY AUTHORITY

The adopted rule is adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department. The adopted rule also is adopted under Texas Government Code, Chapter 2110, §2110.008, regarding the duration of advisory committees.

The statutory provisions affected by the adopted rule are those set forth in Texas Occupations Code, Chapter 51 and Texas Government Code, Chapter 2110. In addition, the following statutes for the programs that have advisory boards are affected by the adopted rule: Agriculture Code, Chapter 301 (Weather Modification and Control); Education Code, Chapter 1001 (Driver and Traffic Safety Education); Government Code, Chapter 469 (Elimination of Architectural Barriers); Health and Safety Code, Chapters 754 (Elevators, Escalators, and Related Equipment) and 755 (Boilers); Occupations Code, Chapters 202 (Podiatrists); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 403 (Dyslexia Practitioners and Therapists); 451 (Athletic Trainers); 455 (Massage Therapy); 506 (Behavioral Analysts); 605 (Orthotists and Prosthetists); 701 (Dietitians); 802 (Dog or Cat Breeders); 1151 (Property Tax Professionals); 1152 (Property Tax Consultants); 1302 (Air Conditioning and Refrigeration Contractors); 1305 (Electricians); 1601 (Barbers); 1602 (Cosmetologists); 1603 (Barbers and Cosmetologists); 1703 (Polygraph Examiners); 1802 (Auctioneers); 1901 (Water Well Drillers); 1902 (Water Well Pump Installers): 1952 (Code Enforcement Officers); 1953 (Sanitarians); 2052 (Combative Sports); 2303 (Vehicle Storage Facilities); 2308 (Vehicle Towing and Booting); 2309 (Used Automotive Parts Recyclers); and 2310 (Motor Fuel Metering and Quality); and Transportation Code, Chapter 662 (Motorcycle Operator Training and Safety).

No other statutes, articles, or codes are affected by the adopted rule.

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 December 10, 2021.

TRD-202104982

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2022

Proposal publication date: October 1, 2021

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


CHAPTER 82. BARBERS

16 TAC §82.80

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 82, §82.80, regarding the Barbering program, without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 TexReg 6652). The rule will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC Chapter 82 implement Texas Occupations Code, Chapters 1601 and 1603.

The adopted rule is necessary to begin implementing House Bill (HB) 1560, 87th Legislature, Regular Session (2021). HB 1560 makes many changes, including combining the Barbering and Cosmetology program statutes, and eliminating instructor licenses. Under HB 1560, TDLR will discontinue issuing instructor licenses at some point before September 1, 2023, and instructors will transition to holding only the individual practitioner license for their field of instruction. In preparation for that transition, the adopted rule reduces instructor license renewal fees to match the renewal fees for the Class A Barber certificate and specialty licenses or certificates.

SECTION-BY-SECTION SUMMARY

The adopted rule amends §82.80 by reducing the instructor license renewal fee to $55 and reducing the specialty instructor license renewal fee to $30.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rule to persons internal and external to the agency. The proposed rule was published in the October 8, 2021, issue of the Texas Register (46 TexReg 6652). The deadline for public comments was November 8, 2021. The Department received comments from three interested parties on the proposed rule during the 30-day public comment period. The public comments are summarized below.

Comment: The Department received two comments opposing the discontinuation of instructor licenses.

Department Response: The Department disagrees with the comments. The proposed rule does not deregulate instructor licenses; instead, the proposed rule alters applicable fees for renewal. HB 1560 requires the Department to discontinue issuing barbering instructor licenses by September 1, 2023. The Department does not have authority to change this legislative direction in rule, and comments requesting such a change are outside the scope of the proposed rule. The Department made no changes to the proposed rule in response to these comments.

Comment: The Department received one comment opposing combining cosmetology and barbering into one regulatory program.

Department Response: This comment is outside the scope of the proposed rule. The Department made no changes to the proposed rule in response to these comments.

COMMISSION ACTION

At its meeting on December 7, 2021, the Commission adopted the proposed rule as recommended by the Department.

STATUTORY AUTHORITY

The adopted rule is adopted under Texas Occupations Code, Chapters 51, 1601, and 1603, which authorize the Commission 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 rule are those set forth in Texas Occupations Code, Chapters 51, 1601, and 1603. No other statutes, articles, or codes are affected by the adopted rule.

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 December 10, 2021.

TRD-202104992

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: October 8, 2021

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


CHAPTER 83. COSMETOLOGISTS

16 TAC §83.80

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 83, §83.80, regarding the Cosmetologists Program, without changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 TexReg 6653). The rule will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC Chapter 83 implement Texas Occupations Code, Chapters 1602 and 1603.

The adopted rule is necessary to begin implementing House Bill (HB) 1560, 87th Legislature, Regular Session (2021). HB 1560 makes many changes, including combining the Barbers and Cosmetologists program statutes, eliminating instructor licenses, and deregulating wig specialty certificates and wig salons. Under HB 1560, TDLR will discontinue issuing instructor licenses at some point before September 1, 2023, and instructors will transition to holding only the individual practitioner license for their field of instruction. In preparation for that transition, the adopted rule reduces instructor license renewal fees to match the renewal fees for the cosmetology operator and specialty licenses.

Additionally, the adopted rule implements HB 1560 by removing wig specialty certificates from the list of initial application fees and renewal fees.

SECTION-BY-SECTION SUMMARY

The adopted rule amends §83.80 by removing wig specialty certificates from the list of initial application fees and renewal fees; reducing the instructor license renewal fee to $50; and reducing the instructor specialty license renewal fee to $50.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rule to persons internal and external to the agency. The proposed rule was published in the October 8, 2021, issue of the Texas Register (46 TexReg 6653). The deadline for public comments was November 8, 2021. The Department received comments from nine interested parties on the proposed rule during the 30-day public comment period. The public comments are summarized below.

Comment -- The Department received seven comments opposing the discontinuation of instructor licenses.

Department Response -- The Department disagrees with the comments. The proposed rule does not deregulate instructor licenses; instead, the proposed rule alters applicable fees for renewal. HB 1560 requires the Department to discontinue issuing cosmetology instructor licenses by September 1, 2023. The Department does not have authority to change this legislative direction in rule, and comments requesting such a change are outside the scope of the proposed rule. The Department made no changes to the proposed rule in response to these comments.

Comment -- Champion Beauty College submitted a comment expressing interest in the advisory board and stating that barbering and cosmetology should not be deregulated.

Department Response -- This comment is outside the scope of the proposed rule. The Department made no changes to the proposed rule in response to this comment.

Comment -- One commenter submitted a comment seeking assistance with a licensing matter.

Department Response -- This comment is outside the scope of the proposed rule. The Department made no changes to the proposed rule in response to this comment.

COMMISSION ACTION

At its meeting on December 7, 2021, the Commission adopted the proposed rule as recommended by the Department.

STATUTORY AUTHORITY

The adopted rule is adopted under Texas Occupations Code, Chapters 51, 1602, and 1603, which authorize the Texas Commission of Licensing and Regulation, the Departments 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 rule are those set forth in Texas Occupations Code, Chapters 51, 1602, and 1603. No other statutes, articles, or codes are affected by the adopted rule.

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 December 10, 2021

TRD-202104994

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: October 8, 2021

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


CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 111, Subchapter A, §111.2; Subchapter E, §111.41; Subchapter F, §111.50 and §111.51; Subchapter J, §111.91 and §111.92; and Subchapter V, §111.210 and §111.211; adopts a new rule at Subchapter V, §111.212; and adopts the repeal of existing rules at Subchapter V, §§111.212 - 111.216, and Subchapter X, §§111.230 - 111.232, regarding the Speech-Language Pathologists and Audiologists Program, without changes to the proposed text as published in the September 10, 2021, issue of the Texas Register (46 TexReg 5698). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 111 implement Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists; Chapter 51, the enabling statute of the Commission and the Texas Department of Licensing and Regulation (Department); and Chapter 111, Telemedicine and Telehealth.

The adopted rules implement the telehealth emergency rules on a permanent basis; implement SB 40, 87th Legislature, Regular Session (2021); and include changes as a result of the four-year rule review related to telehealth and remote supervision (tele-supervision). The adopted rules also reorganize the current provisions and eliminate duplicative provisions.

Telehealth Emergency Rules

The Commission adopted emergency rules to ensure that services to clients and supervision of certain licensees may continue to be provided through telehealth as was allowed under the waivers that were granted by the Governor during the COVID-19 pandemic. The emergency rules also reflected the change in the statutory authority regarding telehealth. The emergency rules were necessary to protect the public health, safety, and welfare. (Emergency Rules, 46 TexReg 5313, August 27, 2021).

The telehealth emergency rules were effective September 1, 2021. Emergency rules are only effective for 120 days, with one 60-day extension, for a total of 180 days. The adopted rules implement the emergency rules on a permanent basis.

Implementation of SB 40

Senate Bill (SB) 40, 87th Legislature, Regular Session (2021) added new telehealth provisions and rulemaking authority to Texas Occupations Code, Chapter 51, and repealed the provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice in Texas Occupations Code, Chapters 401 and 402. The joint rules were with the Hearing Instrument Fitters and Dispensers program. These changes became effective immediately.

The adopted rules implement SB 40 as it relates to telehealth, tele-supervision, and the repeal of the statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice. Because SB 40 was effective immediately, the necessary changes related to statutory authority for telehealth were included in the emergency rules (discussed above).

Four-Year Rule Review Changes

The adopted rules include changes as a result of the four-year rule review related to telehealth and tele-supervision. The Department conducted the required four-year rule review of the rules under 16 TAC Chapter 111, and the Commission readopted the rule chapter in its entirety and in its current form. (Proposed Rule Reviews, 45 TexReg 7281, October 9, 2020. Adopted Rule Reviews, 46 TexReg 2050, March 26, 2021).

In response to the Notice of Intent to Review that was published, the Department received 106 public comments regarding 16 TAC Chapter 111. Most of the comments requested rule changes that would make permanent the expanded use of telehealth and tele-supervision for interns and assistants, as was allowed under the Governor's waivers that were issued pursuant to the COVID-19 disaster declaration. These suggested changes are part of the emergency rules and are part of the adopted rules. The adopted rules also include changes based on the Department's review of the rules during the rule review process related to telehealth and tele-supervision.

Reorganization Changes

The adopted rules consolidate the existing rules, reorganize the existing provisions by subject matter, and eliminate duplicative provisions, as recommended by Department staff.

SECTION-BY-SECTION SUMMARY

Subchapter A

The adopted rules amend Subchapter A. General Provisions.

The adopted rules amend §111.2, Definitions. The adopted rules combine the separate definitions of "direct supervision" for interns and assistants into one definition. The adopted rules combine the separate definitions of "indirect supervision" for interns and assistants into one definition. The adopted rules allow for direct and indirect supervision to be performed through tele-supervision and not require in-person supervision. The definition of "in-person" has been updated to address services to clients and supervision of licensees. The adopted rules add a new definition of "tele-supervision." This terminology replaces language in the current rules regarding supervising through telehealth or telepractice/telehealth.

Subchapter E

The adopted rules amend Subchapter E. Requirements for Intern in Speech-Language Pathology License.

The adopted rules amend §111.41, Intern in Speech-Language Pathology License--Internship and Supervision Requirements. Subsection (d) is amended to allow interns to receive direct supervision through tele-supervision and not require in-person supervision.

Subchapter F

The adopted rules amend Subchapter F. Requirements for Assistant in Speech-Language Pathology License.

The adopted rules amend §111.50, Assistant in Speech-Language Pathology License--Licensing Requirements--Education and Clinical Observation and Experience. Subsection (e) is amended to allow supervision to be performed through tele-supervision and not require in-person supervision.

The adopted rules amend §111.51, Assistant in Speech-Language Pathology License--Supervision Requirements. Subsection (e) is amended to allow supervision to be performed through tele-supervision and not require in-person supervision. Subsection (g) is amended to eliminate any caps or limits on the number of hours that can be supervised through tele-supervision and to allow direct and indirect supervision to be provided through tele-supervision.

Subchapter J

The adopted rules amend Subchapter J. Requirements for Assistant in Audiology License.

The adopted rules amend §111.91, Assistant in Audiology License--Supervision Requirements. Subsection (f) is amended to eliminate restrictions on the duties that can be supervised by tele-supervision and to allow direct and indirect supervision to be provided through tele-supervision.

The adopted rules amend §111.92, Assistant in Audiology License--Practice and Duties of Assistants. Subsection (c) is amended to allow the assigned duties under paragraphs (1) - (3) to be directly supervised through tele-supervision and not require in-person supervision. Paragraph (4) is amended to remove the requirement for direct supervision of this duty.

Subchapter V

The adopted rules amend Subchapter V. Telehealth.

The adopted rules amend §111.210, Definitions Relating to Telehealth. The section has been updated to consolidate definitions from §111.210 and §111.231 into one section and to eliminate duplicative provisions. Other definitions are found in current §111.2.

The adopted rules make clean-up changes to the definition of "client site." The adopted rules remove the definition of "consultant" and the references and provisions in the rules regarding consultants. The definition of "provider" has been expanded to include speech-language pathology interns, speech-language pathology assistants, and audiology assistants. This change will allow additional licensees to provide telehealth services. The definitions of "facilitator" and "provider site" have been updated to reference "provider" and to make clean-up changes. The definition of "telecommunications technology" is updated to include a smart phone, or any audio-visual, real-time, or two-way interactive communication system.

The adopted rules update the definition of "telehealth" to include assessments, interventions, or consultations regarding a client. For audiologists and audiology interns, the definition has been updated to include the use of telecommunications technology for the fitting and dispensing of hearing instruments.

The adopted rules update the definition of "telehealth services" to include the rendering of audiology and/or speech-language pathology services through telehealth to a client who is physically located at a site other than the site where the provider is located. For audiologists and audiology interns, the definition has been updated to include the fitting and dispensing of hearing instruments through telehealth to a client who is physically located at a site other than the site where the provider is located.

The adopted rules remove the definitions of "telepractice" and "telepractice services." These terms are duplicative with the terms "telehealth" and "telehealth services," which is the terminology used in Occupations Code Chapter 51, as amended by SB 40, and Chapter 111.

The adopted rules amend §111.211, Service Delivery Models of Speech-Language Pathologists. The title of the section has been changed to "Service Delivery Models" to apply to all telehealth providers. The adopted rules remove references to "consultant" and replace references to "telepractice" with "telehealth service."

The adopted rules add a new §111.212, Requirements for Providing Telehealth Services and Using Telehealth. This new section consolidates the separate telehealth rules for speech-language pathologists and audiologists into one new rule. The new rule consolidates the provisions from existing rules §§111.212, 111.214, 111.215, and 111.232; reorganizes the provisions by subject matter; eliminates duplicative provisions; and updates the terminology to use the terms "telehealth" and "telehealth services."

New §111.212(a) addresses the applicability of the subchapter. Except where noted, the subchapter applies to speech-language pathologists, speech-language pathology interns, speech-language pathology assistants, audiologists, audiology interns, audiology assistants, and dual speech-language pathologist and audiologist license holders, as authorized under this subchapter. This subsection also addresses the applicability of other laws.

New §111.212(b) addresses licensure and scope of practice requirements related to providing telehealth services. This subsection also specifies that speech-language pathology assistants and audiology assistants may provide services through telehealth, as directed by their supervisors, according to the specified requirements.

New §111.212(c) addresses competence and standard of practice. The subsection includes provisions regarding provider competence in the services being provided and the methodology and equipment being used; the standard of practice being the same for services provided via telehealth as services provided in-person; and the responsibility of a provider to determine whether a particular service or procedure is appropriate to be provided via telehealth.

New §111.212(d) addresses the use of facilitators to assist a provider in providing telehealth services. This subsection includes provisions regarding the facilitator's qualifications, training, and competence, as appropriate; the tasks that may be performed; the responsibilities of the provider; and the required documentation.

New §111.212(e) addresses technology and equipment. This subsection includes provisions regarding using telecommunications technology and other equipment that the provider is competent to use, and only providing telehealth services if the telecommunications technology and equipment are appropriate for the services to be provided; are properly calibrated, if appropriate, and in good working order; and are of sufficient quality to deliver equivalent service and quality to the client as if those services were provided in-person.

New §111.212(f) addresses client contacts and communications. This subsection provides that the initial contact between a provider and a client may be at the same physical location or through telehealth, as determined appropriate by the provider. For a speech-language pathology assistant, the initial contact with a client must be made by the assistant's supervisor. This subsection requires consideration of certain factors in determining the appropriateness of providing services via telehealth and requires a notification of telehealth services be provided to a client.

New §111.212(g) addresses records and billing. This subsection includes provisions regarding maintenance of client records; documentation of telehealth services; and reimbursement of telehealth services.

New §111.212(h) addresses hearing instruments. This subsection includes a provision regarding digital adjustments of hearing instruments through telecommunications technology by a provider who is an audiologist or an audiology intern.

The adopted rules repeal existing §111.212, Requirements for the Use of Telehealth by Speech-Language Pathologists.

The adopted rules repeal existing §111.213, Limitations on the Use of Telecommunications Technology by Speech-Language Pathologists.

The adopted rules repeal existing §111.214, Requirements for Providing Telehealth Services in Speech-Language Pathology.

The adopted rules repeal existing §111.215, Requirements for Providing Telepractice Services in Audiology.

The adopted rules repeal existing §111.216, Limitations on the Use Telecommunications Technology by Audiologists.

Subchapter X

The adopted rules repeal Subchapter X. Joint Rules for Fitting and Dispensing of Hearing Instruments by Telepractice.

The adopted rules repeal existing §111.230, Purpose. The statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice were repealed by SB 40, effective immediately.

The adopted rules repeal existing §111.231, Definitions. The definitions under §111.231 are included in §111.2 and §111.210, as necessary.

The adopted rules repeal existing §111.232, Requirements for Providing Telehealth Services for the Fitting and Dispensing of Hearing Instruments. The provisions in §111.232 have been consolidated with the provisions in existing §§111.212, 111.214, and 111.215 to create new §111.212 under Subchapter V. Telehealth.

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 September 10, 2021, issue of the Texas Register (46 TexReg 5698). The deadline for public comments was October 11, 2021. The Department received comments from three interested parties on the proposed rules during the 30-day public comment period. The public comments are summarized below.

Comment--One individual submitted a comment on §111.51, Assistant in Speech-Language Pathology License--Supervision Requirements. The commenter stated that in light of COVID-19, initial contacts have been "increasingly difficult to allow for timely initiation of care." The commenter suggested allowing the speech-language pathologist supervisor to either conduct a chart review or have an initial contact with the client, to determine if the assistant has the skill set to provide services to a client. The commenter stated that all assistants in Texas have a minimum of a bachelor's degree and have received training.

Department Response--The comment relates to the existing provisions under §111.51(f), which require the supervising speech-language pathologist to have the initial contact with the clients on their caseload before allowing an assistant under their supervision to provide services to those clients. It appears the commenter would like to amend the existing provisions to require the speech-language pathologist supervisor to either conduct a chart review or have the initial contact with the client. This change would allow a chart review to be performed instead of the initial contact with the client.

The Department disagrees with this comment. The suggested change goes beyond the scope of the proposed changes and would be a substantive change to the existing and proposed rules. While other subsections under §111.51 were amended in this rulemaking, §111.51(f) was not amended. A similar provision also was added to new §111.212(f)(1) that reflects the current requirements under §111.51(f). The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One individual submitted a comment in support of the proposed rules that allow interns and assistants to use telehealth and that remove the limits on the amount of supervision can be provided through telehealth. The commenter stated that there had been no increase in complaints over the last 18 months and expressed appreciation for keeping the rules updated.

Department Response--The Department appreciates this comment in support of the proposed rules. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--The Texas Speech-Language Hearing Association (TSHA) submitted a comment in support of the proposed rules under Chapter 111, Subchapters A, E, F, J, and V. TSHA stated it supports all the proposed rule changes, which will allow for increased access to services, increased coverage of rural areas, and increased flexibility to provide services safely during the pandemic.

Department Response--The Department appreciates this comment in support of the proposed rules. The Department did not make any changes to the proposed rules as a result of thiscomment.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Speech-Language Pathologists and Audiologists Advisory Board met on November 2, 2021, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on December 7, 2021, the Commission adopted the proposed rules as recommended by the Advisory Board.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §111.2

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. 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 December 10, 2021.

TRD-202104973

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


SUBCHAPTER E. REQUIREMENTS FOR INTERN IN SPEECH-LANGUAGE PATHOLOGY LICENSE

16 TAC §111.41

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. 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 December 10, 2021.

TRD-202104975

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


SUBCHAPTER F. REQUIREMENTS FOR ASSISTANT IN SPEECH-LANGUAGE PATHOLOGY LICENSE

16 TAC §111.50, §111.51

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. 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 December 10, 2021.

TRD-202104976

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


SUBCHAPTER J. REQUIREMENTS FOR ASSISTANT IN AUDIOLOGY LICENSE

16 TAC §111.91, §111.92

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. 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 December 10, 2021.

TRD-202104977

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


SUBCHAPTER V. TELEHEALTH

16 TAC §§111.210 - 111.212

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. 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 December 10, 2021.

TRD-202104978

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


SUBCHAPTER V. TELEHEALTH

16 TAC §§111.212 - 111.216

STATUTORY AUTHORITY

The adopted repeals are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted repeals are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. 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 December 10, 2021.

TRD-202104980

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


SUBCHAPTER X. JOINT RULES FOR FITTING AND DISPENSING OF HEARING INSTRUMENTS BY TELEPRACTICE

16 TAC §§111.230 - 111.232

STATUTORY AUTHORITY

The adopted repeals are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted repeals are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. 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 December 10, 2021.

TRD-202104981

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


CHAPTER 112. HEARING INSTRUMENT FITTERS AND DISPENSERS

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 112, Subchapter A, §112.2; adopts new rules at Subchapter N, §112.130 and §112.132; and adopts the repeal of an existing rule at Subchapter P, §112.150, regarding the Hearing Instrument Fitters and Dispensers Program, without changes to the proposed text as published in the September 10, 2021, issue of the Texas Register (46 TexReg 5713). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 112 implement Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers; Chapter 51, the enabling statute of the Commission and the Texas Department of Licensing and Regulation (Department); and Chapter 111, Telemedicine and Telehealth.

The adopted rules implement the telehealth emergency rules on a permanent basis; implement SB 40, 87th Legislature, Regular Session (2021); and include changes as a result of the four-year rule review related to telehealth. The adopted rules also reorganize the existing provisions.

Telehealth Emergency Rules

The Commission adopted emergency rules to ensure that services to clients may continue to be provided through telehealth as was allowed under the waivers that were granted by the Governor during the COVID-19 pandemic. The emergency rules also reflected the change in the statutory authority regarding telehealth. The emergency rules were necessary to protect the public health, safety, and welfare. (Emergency Rules, 46 TexReg 5327, August 27, 2021).

The telehealth emergency rules were effective September 1, 2021. Emergency rules are only effective for 120 days, with one 60-day extension, for a total of 180 days. The adopted rules implement the emergency rules on a permanent basis.

Implementation of SB 40

Senate Bill (SB) 40, 87th Legislature, Regular Session (2021) added new telehealth provisions and rulemaking authority to Texas Occupations Code, Chapter 51, and repealed the provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice in Texas Occupations Code, Chapters 401 and 402. The joint rules were with the Speech-Language Pathologists and Audiologists program. These changes became effective immediately.

The adopted rules implement SB 40 as it relates to telehealth and the repeal of the statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice. Because SB 40 was effective immediately, the necessary changes related to statutory authority for telehealth were included in the emergency rules (discussed above).

Four-Year Rule Review Changes

The adopted rules include changes as a result of the four-year rule review related to telehealth. The Department conducted the required four-year rule review of the rules under 16 TAC Chapter 112, and the Commission readopted the rule chapter in its entirety and in its current form. (Proposed Rule Reviews, 45 TexReg 7281, October 9, 2020. Adopted Rule Reviews, 46 TexReg 2050, March 26, 2021).

In response to the Notice of Intent to Review that was published, the Department received two public comments regarding 16 TAC Chapter 112. One of the comments suggested changes to the joint rules for fitting and dispensing hearing instruments by telepractice. This comment suggested changing the terminology and the definition of "hearing instrument" under 16 TAC §112.150(b). The Department did not make the suggested change, since this is the same terminology and definition that is included in Texas Occupations Code §402.001 and 16 TAC §112.2. The adopted rules, however, include changes based on the Department's review of the rules during the rule review process related to telehealth.

Reorganization Changes

The adopted rules create a new subchapter for the new telehealth rules and relocate and reorganize the existing provisions by subject matter, as recommended by Department staff.

SECTION-BY-SECTION SUMMARY

Subchapter A

The adopted rules amend Subchapter A. General Provisions.

The adopted rules amend §112.2, Definitions. The adopted rules add a definition of "telehealth" with a cross-reference to the definitions under new Subchapter N. Telehealth.

Subchapter N

The adopted rules add new Subchapter N. Telehealth.

The adopted rules add new §112.130, Definitions Relating to Telehealth. This new section includes definitions from §112.150(b), as necessary. Other definitions are found in existing §112.2.

The adopted rules make clean-up changes to the definitions of "client site," "facilitator," and "provider site." The adopted rules add a definition of "in-person." The definition of "provider" has been expanded to include apprentice permit holders and temporary training permit holders who have completed the direct supervision training requirements. This change will allow additional providers to provide telehealth services.

The definition of "telecommunications" is updated to include the word "synchronous." The definition of "telecommunications technology" is updated to include a smart phone, or any audio-visual, real-time, or two-way interactive communication system, and to clarify the current reference to telephone in the definition.

The adopted rules replace the term "telepractice" with the term "telehealth." This change provides consistency in terminology across provisions and reflects the terminology used in Texas Occupation Code, Chapter 51, as amended by S.B. 40, and Texas Occupations Code, Chapter 111, Telemedicine and Telehealth. The reference to "telepractice" was found in Texas Occupations Code §402.1023, which was repealed.

The adopted rules update the definition of "telehealth" (formerly "telepractice") to provide for the use of telecommunications and information technologies for the exchange of information from one site to another for the provision of services to a client from a provider, and to include assessments, interventions, or consultations regarding a client. The adopted rules update the definition of "telehealth services" to include assessments, interventions, and/or consultations regarding a client.

The adopted rules add new §112.132, Requirements for Providing Telehealth Services and Using Telehealth. This new section contains most of the provisions under §112.150(c) - (n). These provisions have been reorganized by subject matter with the new provisions, and the terminology has been updated to use the terms "telehealth" and "telehealth services."

New §112.132(a) addresses the applicability of the subchapter. Except where noted, the subchapter applies to hearing instrument fitters and dispensers, apprentice permit holders, and temporary training permit holders, as authorized under this subchapter. This subsection also addresses the applicability of other laws.

New §112.132(b) addresses licensure and scope of practice requirements related to providing telehealth services. This subsection also specifies that an apprentice permit holder may provide telehealth services under their approved supervisor's license according to the specified requirements. A temporary training permit holder may provide telehealth services, as directed by their supervisor, according to the specified requirements, but only after the direct supervision training requirements are completed.

New §112.132(c) addresses competence and standard of practice. The subsection includes provisions regarding provider competence in the services being provided and the methodology and equipment being used; the standard of practice being the same for services provided via telehealth as services provided in-person; and the responsibility of a provider to determine whether a particular service or procedure is appropriate to be provided via telehealth.

New §112.132(d) addresses the use of facilitators to assist a provider in providing telehealth services. This subsection includes provisions regarding the facilitator's qualifications, training, and competence, as appropriate; the tasks that may be performed; the responsibilities of the provider; and the required documentation.

New §112.132(e) addresses technology and equipment. This subsection includes provisions regarding using telecommunications technology and other equipment that the provider is competent to use, and only providing telehealth services if the telecommunications technology and equipment are appropriate for the services to be provided; are properly calibrated, if appropriate, and in good working order; and are of sufficient quality to deliver equivalent service and quality to the client as if those services were provided in-person.

New §112.132(f) addresses client contacts and communications. This subsection provides that the initial contact between a provider and a client may be at the same physical location or through telehealth, as determined appropriate by the provider. This subsection requires consideration of certain factors in determining the appropriateness of providing services via telehealth and requires a notification of telehealth services be provided to a client.

New §112.132(g) addresses records and billing. This subsection includes provisions regarding maintenance of client records; documentation of telehealth services; and reimbursement of telehealth services.

New §112.132(h) addresses hearing instruments. This subsection includes a provision regarding digital adjustments of hearing instruments through telecommunications technology by a provider.

Subchapter P

The adopted rules repeal Subchapter P. Joint Rules for Fitting and Dispensing of Hearing Instruments by Telepractice.

The adopted rules repeal existing §112.150, Requirements Regarding the Fitting and Dispensing of Hearing Instruments by Telepractice. The statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice were repealed by SB 40, effective immediately. The definitions under §112.150(b) are included in §112.2 and new §112.130, as necessary. Most of the remaining provisions under §112.150(c) - (n) have been relocated to new §112.132 under new Subchapter N. Telehealth, and have been reorganized by subject matter with the new provisions.

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 September 10, 2021, issue of the Texas Register (46 TexReg 5713). The deadline for public comments was October 11, 2021. The Department did not receive any comments from interested parties on the proposed rules during the 30-day public comment period.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Hearing Instrument Fitters and Dispensers Advisory Board met on November 9, 2021, to discuss the proposed rules. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on December 7, 2021, the Commission adopted the proposed rules as recommended by the Advisory Board.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §112.2

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. 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 December 10, 2021.

TRD-202104966

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


SUBCHAPTER N. TELEHEALTH

16 TAC §112.130, §112.132

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. 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 December 10, 2021.

TRD-202104967

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


SUBCHAPTER P. JOINT RULES FOR FITTING AND DISPENSING OF HEARING INSTRUMENTS BY TELEPRACTICE

16 TAC §112.150

STATUTORY AUTHORITY

The adopted repeal is adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted repeal is also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers.

The statutory provisions affected by the adopted repeal are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the adopted repeal.

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 December 10, 2021.

TRD-202104968

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 10, 2021

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


CHAPTER 115. MIDWIVES

16 TAC §115.14, §115.115

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 115, §115.14 and §115.115, regarding the Midwives Program, without changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 TexReg 6187). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The adopted rules add specific uterine and fetal heart rate conditions to the list of conditions during labor or delivery that require a midwife to initiate immediate emergency transfer of a client to a physician. The adopted rules provide standards for assessing fetal heart rates by intermittent auscultation and require midwives to complete two hours of continuing education covering the topic as a condition for license renewal. These changes are necessary to implement recommendations of the Standard of Care workgroup of the Midwives Advisory Board to clarify the standards of care for midwives and ensure that all midwives possess the knowledge and skills necessary to meet the standards.

The adopted rules also provide an audit system for reporting completion of continuing education for license renewal and make other clean-up changes to the license renewal provisions. These changes are necessary to implement recommendations by Department staff to improve the effectiveness and efficiency of the program.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §115.14, License Renewal, by rephrasing subsection (a) for clarity; removing from subsection (a)(1) unnecessary details about the application form; rephrasing subsection (a)(2) for clarity; adding language to subsection (a)(4) to allow the Department to accept an equivalent to the neonatal resuscitation certificate issued by the American Academy of Pediatrics; rephrasing subsection (a)(5) for consistency with other fee references; changing the punctuation in subsection (a)(6); adding new subsection (a)(7) to relocate the requirement for human trafficking prevention training from subsection (b); adding to subsection (b) a new license renewal requirement of two hours of continuing education covering the topic of assessing fetal heart rates by intermittent auscultation; adding new subsection (c) to provide an audit system for reporting completion of continuing education; and adding new subsection (d) to provide the process for the audit system and the responsibilities of licensees.

The adopted rules amend §115.115, Labor and Delivery, by rephrasing and expanding subsection (e)(6) to provide clarity and list specific examples of fetal heart rate conditions that require immediate emergency transfer of the client to a physician; adding to subsection (e)(16) "uterine tachysystole" as a condition requiring immediate emergency transfer of the client to a physician; relocating the language in current subsection (e)(16) to adopted new subsection (e)(17); and adding new subsection (f) to require intermittent auscultation to be performed as recommended by the American College of Nurse-Midwives.

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 September 17, 2021, issue of the Texas Register (46 TexReg 6187). The deadline for public comments was October 17, 2021. 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 -- One comment opposes the new requirement in §115.14(b) for two of the 20 continuing education hours submitted for each license renewal to cover the topic of assessing fetal heart rates by intermittent auscultation. The comment states that two hours is insufficient to address the complexity of the subject.

Department Response -- The Department disagrees with the comment because the Midwives Advisory Board has determined that two hours of continuing education for each license renewal is the appropriate requirement to address the subject. The Department made no changes to the proposed rules in response to this comment.

Comment -- One comment opposes the proposed changes to §115.115(e)(6) regarding fetal heart rate conditions that require emergency transfer of the client to a physician. The comment states that the conditions listed in proposed new subparagraphs (A) - (D) encompass conditions that are often present in normal labor or delivery, and this would require emergency transfer in situations that are not actually emergencies. The comment also states that the condition listed in proposed new subparagraph (D) would require the use of electronic fetal monitoring, which requires unportable equipment that midwives are not trained to use. The comment recommends amending subsection (e)(6) to read as "abnormal fetal heart rate pattern".

Department Response -- The Department disagrees with the comment because the Midwives Advisory Board, which includes an obstetrician-gynecologist and a pediatrician, has determined that the conditions listed in proposed new subparagraphs (A) - (D) are serious conditions that indicate fetal distress and can be detected without the use of electronic fetal monitoring. The Department made no changes to the proposed rules in response to this comment.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Midwives Advisory Board met on November 8, 2021, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on December 7, 2021, the Commission adopted the proposed rules as recommended by the Advisory Board.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 203, which authorize the Texas Commission of Licensing and Regulation, 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 203. 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 December 10, 2021.

TRD-202104995

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 30, 2021

Proposal publication date: September 17, 2021

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


CHAPTER 117. MASSAGE THERAPY

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 117, Subchapter A, §117.2, Subchapter F, §§117.50, 117.55, 117.58, 117.59, 117.62, 117.66, 117.67, and 117.68, Subchapter G, §117.82, and Subchapter H, §§117.91 and 117.92, regarding the Massage Therapy Program. Section 117.50, concerning Massage School License--General Requirements and Application, and §117.59, concerning Massage School Curriculum Outline and Internship, are adopted with changes to the proposed text as published in the August 20, 2021, issue of the Texas Register (46 TexReg 5125). These rules will be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 117 implement Texas Occupations Code, Chapter 455.

The adopted rules are necessary to implement bills passed in the 87th Legislature, Regular Session, and update the Massage Therapy rules. Specifically, the adopted rules implement Senate Bill 1130, 87th Legislature, Regular Session (2021), which expressly allows massage schools to teach certain subjects through distance learning. The adopted rules also implement House Bill 1540, 87th Legislature, Regular Session (2021), which amended the definition of "sexual contact" in the Massage Therapy statute. Additionally, the adopted rules include clarification and clean-up changes.

The adopted rules also include changes in response to violence and other misconduct against massage therapists, including the shootings at massage establishments near Atlanta, Georgia. These amendments were recommended by department staff and the Massage Therapy Advisory Board's standard of care workgroup.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §117.2 by adding a definition for "distance learning" and renumbering the remaining definitions.

The adopted rules amend §117.50 by adding subsection (k), which requires department approval for distance learning. Changes were made to this subsection in response to comments received. Specifically, this subsection no longer requires a massage school that has already been approved for distance learning to obtain additional approval before changing the school's technology or method of providing distance learning, or before offering additional instruction through distance learning. Instead, the massage school will be required to notify the Department after making the change.

The adopted rules amend §117.55 to require massage schools to maintain and make available for department inspection the documentation related to distance learning. The adopted amendments to §117.55 also allow the department to inspect a massage school's instruction, including the instruction offered through distance learning.

The adopted rules amend §117.58 by updating the responsibilities of a massage school's designated contact person to include the organization of all instruction, including instruction through distance learning.

The adopted rules amend §117.59 to include detail related to distance learning. Specifically, the adopted amendments: update the language in subsection (c) to refer to instructional hours and instruction time; update subsection (d) to require an instructor to be physically present with the student during any in-person hours, and to require that any make-up work completed through distance learning comply with the distance learning provisions in the chapter; require in subsection (e) that the internship be completed at a licensed massage school and not through distance learning; update subsection (h) to require a school to provide all instruction at the physical site where the student enrolled or through distance learning (if otherwise allowed), unless otherwise agreed to by the student and the educational program; and update subsection (i) to refer to instruction. The adopted amendments to §117.59(m) include requirements that massage schools must comply with if they offer distance learning. These requirements relate to verifying the student's identity, tracking student hours, monitoring the student's participation, offering an opportunity for direct interaction between the instructor and the student, providing instruction involving academic engagement, maintaining documentation, ensuring that students have all necessary educational materials, and using a time clock or similar technology in distance learning. The adopted amendments provide examples of instruction that involves academic engagement. The adopted amendments to subsection (m) also prohibit schools from using distance learning to provide the instruction required by Occupations Code, Section 455.156(b)(1)(A). In addition to distance learning-related amendments, the adopted rules amend subsection (n) to require that massage schools offer information in protecting the safety of massage therapists, including steps to take if a client initiates any verbal or physical contact with the massage therapist that is sexual in nature. This information may be provided as part of the minimum 500-hour supervised course of instruction, at any time during the 500 hours. Additionally, the adopted amendments to §117.59(f) clarify that a massage therapy instructor must be available on the premises of the school and be immediately available to a student during the hands-on experience during the internship. Changes were made to this section in response to comments received. Specifically, language in subsection (m) has been added to better describe direct interaction between an instructor and a student. Additionally, the terminology for "interactive" instruction has been changed to instruction that involves "academic engagement," and a description of this term is provided. The list of acceptable activities has also been updated to include completing and submitting an academic assignment. And subsection (m) has been reorganized into additional paragraphs for clarity.

The adopted rules amend §117.62 by updating the language in subsection (d)(3) to refer to all instructional hours, including hours completed through distance learning.

The adopted rules amend §117.66 by updating the language in subsection (d) to refer to instruction rather than classes.

The adopted rules amend §117.67 to clarify that massage schools must report the hours that students successfully complete. The adopted amendments also allow the department to require that massage schools report the location where hours were completed or if hours were completed through distance learning.

The adopted rules amend §117.68 by updating the language in subsection (c) to refer to instruction rather than classes.

The adopted rules amend §117.82 by adding solicitation of prostitution to the definition of "sexual contact" in the section.

The adopted rules amend §117.91 by adding two required statements to the consultation document: one statement that the licensee may end the massage session if the licensee feels uncomfortable for any reason, and one statement that the licensee must immediately end the massage statement if a client initiates any verbal or physical contact that is sexual in nature. The adopted rules also include clean-up changes in subsection (b). These changes would require the initial consultation to be updated if a client's reason for seeking massage therapy changes at any time or any of the information in subsections (a)(1) through (a)(3) is modified.

The adopted rules amend §117.92 by adding solicitation of prostitution to the description of "sexual contact" in the section.

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 August 20, 2021, issue of the Texas Register (46 TexReg 5125). The deadline for public comments was September 20, 2021. The Department received 17 comments from interested parties on the proposed rules during the 30-day public comment period. The public comments are summarized below.

Comment--One commenter opposed allowing certain courses to be taught through distance learning. The commenter agreed with allowing certain subjects to be taught through distance learning but stated that there should be a process for approving those courses. The commenter also mentioned that certain continuing education courses could be taught through distance learning.

Department Response--The Department agrees with the comment in part and disagrees in part. SB 1130 expressly allows certain subjects to be taught through distance learning, and the Department does not have authority to change this in the rules. The Department notes that the proposed rules contain an approval process for courses that are taught through distance learning. The portion of the comment regarding continuing education is outside the scope of the proposed rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter believes that the proposed rules should require that a licensed massage therapy instructor teach any course offered through distance learning.

Department Response--The Department disagrees with the comment. The courses that may be taught through distance learning are subjects such as anatomy, physiology, and kinesiology, which have long been taught by persons who may or may not be licensed massage therapy instructors. The Department does not believe that the availability of distance learning warrants changing this in the rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter would like for the Department to offer a course, for a fee, that covers updated laws and rules.

Department Response-- This comment is outside the scope of the proposed rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment--A New Beginning School of Massage Killeen opposed the proposed changes to 16 TAC §117.59(h) but then asked that the comment be disregarded as the commenter had misread the proposed changes.

Department Response--The Department takes note of the comment and that the commenter asked that it be disregarded. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter questioned how the proposed rules would interact with online consultation forms. The commenter also asked how massage therapists should approach online documentation, and whether the Department will urge booking systems to make their online consultation forms more flexible and free to customize.

Department Response--The Department believes that the proposed rules are sufficiently clear that the requirements apply to all consultation documents, whether on paper or electronic. The remainder of this comment is outside the scope of the proposed rules, as the Department does not regulate companies that offer online documentation and booking systems. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter opposed SB 1130 and offering massage therapy instruction through distance learning.

Department Response--The Department disagrees with the comment. SB 1130 expressly allows certain subjects to be taught through distance learning, and the Department does not have authority to change this in the rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter expressed support for the proposed rules regarding the consultation document.

Department Response--The Department appreciates the comment. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter expressed support for the proposed rules regarding distance learning and the consultation document. Additionally, the commenter encouraged the Department to add language that would prohibit massage therapists from discriminating against clients when choosing to end a massage session.

Department Response--The Department appreciates the comment and opposes the portion of the comment suggesting that anti-discrimination language be added. The Department notes that there are anti-discrimination laws that exist outside of the massage therapy statute and rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment--Massage Envy Texas submitted two comments and Trinity Health Spa submitted one comment on the proposed rules. The comments disagreed with the proposed rules in part and agreed in part. Specifically, the commenter questioned the need for written approval prior to changing technology or method of providing distance learning; questioned the need for putting the words "in-person" in the requirement that an instructor be physically present with students during classroom hours; believes that there should be an option for the internship to be completed through distance learning or at sites other than massage schools; noted that the proposed rules refer to 40 hours in an internship while the statute requires 50 hours in an internship; would like for the rules to allow licensed massage therapy instructors to be immediately available to internship students through electronic communication; requested clarification regarding the meaning of "direct interaction" and whether it conflicted with massage schools being able to offer distance learning through a method other than live instruction; opposes the requirement for massage schools to provide in-person instruction in massage therapy techniques, theory, and practice; states that timekeeping errors by students are to be expected, and that a system benefitting students and massage schools alike would be beneficial; and questions the need for massage schools to report whether hours were completed remotely or in-person at the school. The commenter agreed with the proposed changes that would add a sentence to the consultation document to say that the licensee may end the massage session.

Department Response--The Department agrees with the comment in part and disagrees in part. The Department agrees that massage schools that have been approved to provide distance learning should have the flexibility to change the technology they use or expand their distance learning course offerings without getting prior approval. The Department edited the proposed rules to allow this, while still requiring massage schools to notify the Department of the changes they have made. The Department also agreed that the meanings of "direct interaction" and what was previously called "interactive" instruction could be better described. The Department has changed the proposed rules to provide more detail and to clarify that these are two separate requirements. The requirements do not conflict with schools being able to teach the topics in Texas Occupations Code §455.156(b)(1)(B)-(H) through methods other than live instruction. Regarding timekeeping, the Department agrees that errors are to be expected, and believes that the proposed rules provide flexibility for massage schools to choose a system that accurately tracks student hours and works best for the school and their students. The Department disagrees regarding 16 TAC §117.59(d). The words "in-person" are necessary to distinguish between physical classrooms and virtual classrooms. The Department also disagrees regarding the internship. Allowing the internship at sites other than a massage school would not conform with the massage therapy statute and rules, and has implications for public health and safety. Regarding the internship instructor, the Department disagrees that the rules should allow the massage therapy instructor supervising the internship to be immediately available to the student through electronic communication. Most of the internship hours are hands-on, and it is important that the instructor is on-site at the internship so that the instructor can step in and physically assess the client, should the student or the client need assistance. The Department also believes that the instruction in massage therapy techniques, theory, and practice is best provided in-person as these are hands-on skills that are being taught, and massage therapy is a hands-on profession. This comports with the requirements of SB 1130. Regarding the number of hours in the internship, the Department notes that the proposed §117.59(e) refers to "40 hours of hands-on massage therapy experience," which aligns with the requirement in Texas Occupations Code §455.159(a)(2) for 40 hours of hands-on experience. According to Texas Occupations Code §455.159(d), a student participating in an internship may spend the other 10 hours of the internship making appointments with clients, interviewing clients, collecting and reviewing a client evaluation with the student's supervisor, and performing other tasks necessary to the business of providing massage therapy to the public. Finally, the Department disagrees that the proposed rules should not allow the Department to require massage schools to report whether hours were completed through distance learning or on-site. This provision would allow the Department to collect data regarding the number of hours that are taught through distance learning.

Comment--Sterling Health Center opposed the proposed rules. The commenter questioned the need for Department approval before a massage school changes the technology or method of providing distance learning or before offering additional instruction through distance learning. The commenter also expressed that the requirement to report whether student hours are completed on-site or via distance is unnecessary, believes that rule language regarding exam eligibility is unnecessary, and disagreed with requiring the consultation document to be updated every time there is a change in the type of massage therapy services or techniques the licensee anticipates using. In particular, the commenter stated that this requirement is difficult to administer as there are many modalities and techniques, and they may change during the course of a massage session.

Department Response--The Department agrees with the comment in part and disagrees in part. The Department agrees that massage schools that have been approved to provide distance learning should have the flexibility to change the technology they use or expand their distance learning course offerings without getting prior approval. The Department edited the proposed rules to allow this, while still requiring massage schools to notify the Department of the changes they have made. The Department disagrees that the proposed rules should not allow the Department to require massage schools to report whether hours were completed through distance learning or on-site. This provision would allow the Department to collect data regarding the number of hours that are taught through distance learning. The Department also disagrees regarding the consultation document. The rule requires that the consultation document be updated when there is a change in the type of massage therapy services or techniques the licensee anticipates using during the massage therapy session. Therefore, a new consultation document does not need to be executed during the session. Finally, the portion of the comment regarding exam eligibility is outside the scope of the proposed rules.

Comment--DEEP Academy School of Massage opposed the proposed rules in part and agreed in part. The commenter expressed that any requirements beyond tracking student attendance and ensuring the student's identity are unnecessary. In particular, the commenter opposed any requirements regarding methods of instruction for distance learning, a requirement to offer an opportunity for direct interaction with an instructor, and requirements that any portion of the instruction be interactive. The commenter also opposed requiring massage schools to obtain additional approval before changing the technology or method of providing distance learning. The commenter proposed language requiring the Department to grant approval if the massage school plans to provide instruction in accordance with distance learning rules. The commenter also proposed language clarifying the requirement regarding direct interaction with an instructor. Additionally, the commenter believes that completing a reading assignment or an academic assignment should be acceptable distance learning activities. The commenter also suggested adding language that the commenter believes would clarify that the requirements regarding a master attendance record apply only if the massage school has scheduled instruction. Finally, the commenter agreed with the requirement for massage schools to provide information about protecting the safety of the massage therapist, but believes that it should apply to all schools, whether the school provides instruction through distance learning or not.

Department Response--The Department agrees with the comment in part and disagrees in part. The Department agrees that massage schools that have been approved to provide distance learning should have the flexibility to change the technology they use or expand their distance learning course offerings without getting prior approval. The Department edited the proposed rules to allow this, while still requiring massage schools to notify the Department of the changes they have made. The Department also agreed that the requirement for "direct interaction" could be better described, and has changed the proposed rules to provide more detail regarding this. Additionally, the Department agreed that completing an academic assignment should be an acceptable distance learning activity and made changes to the proposed rules accordingly. The Department disagrees that tracking student attendance and verifying student identity are the only distance learning requirements that are needed. The Department believes that the requirements regarding distance learning in the proposed rules are necessary to ensure that massage students receive adequate instruction, and to comply with the requirement in Texas Occupation Code §455.156 for students to receive a supervised course of instruction. The proposed rules also help massage schools ensure that students satisfactorily complete their massage therapy studies, as required by the statute, and are making satisfactory progress in the educational program. The Department also disagrees with the commenter's proposed language requiring the Department to grant approval, as there may be other reasons why approval must be withheld that the Department cannot now anticipate. Regarding a reading assignment through distance learning, the Department believes that this does not comport with the statutory requirement for a supervised course of instruction, even if there is an opportunity for interaction with an instructor. The Department also disagrees with the commenter's proposed language regarding a master attendance record as the proposed language applies to all massage schools, regardless of how many hours are scheduled each day. Finally, the Department appreciates the comment regarding massage schools providing information about protecting the safety of the massage therapist. The Department does not believe the language should be amended, however, as the language that was published applies to all massage schools.

Comment-- The Federation of State Massage Therapy Boards expressed support for the proposed rules regarding distance learning, the consultation document, and updating the definition of "sexual contact" in the massage therapy rules. Additionally, the commenter stated that the definition of "massage school" should be more robust to protect against fraudulent schools; questioned whether the number of internship hours was inconsistent in the rules; and expressed general concerns that expanding distance learning in the absence of sufficient oversight and regulatory accountability could threaten the health and safety of consumers, students, and massage therapists.

Department Response--The Department appreciates the comment and opposes the portion of the comment regarding the number of internship hours. The Department believes that the proposed rules ensure adequate instruction for students while also implementing sufficient safeguards against fraud. Regarding the number of hours in the internship, the Department notes that the proposed 16 TAC §117.59(e) refers to "40 hours of hands-on massage therapy experience," which aligns with the requirement in Texas Occupations Code §455.159(a)(2) for 40 hours of hands-on experience. The remainder of the comment is outside the scope of the proposed rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter opposed proposed rules that would allow distance learning that is not live instruction. The commenter also suggested that the Department define what "interactive" means in 16 TAC §117.59(m).

Department Response--The Department agrees in part and disagrees in part. The Department agrees that the requirements regarding distance learning should be explained in more detail, and has made changes to 16 TAC §117.59(m) in that regard. The Department disagrees with the portion of the comment regarding live instruction. SB 1130 expressly allows certain subjects to be taught through distance learning and specifies that distance learning is not limited to live instruction. The Department does not have authority to change this in the rules.

Comment--One commenter expressed support for the proposed rules regarding the consultation document and distance learning, generally. However, the commenter disagrees with the Department's assessment that the proposed rules will have no fiscal impact on massage schools. In particular, the commenter asserts that there is a cost associated with offering distance learning technology, and massage schools that do not offer distance learning will face competition from schools that do offer it.

Department Response--The proposed rules implement SB 1130, which was passed by the Legislature and signed into law by the Governor. The Department is not imposing any fees on massage schools who choose to offer distance learning, and the choice of whether to offer distance learning, as allowed by SB 1130, is discretionary. The Department is unable to estimate any indirect economic costs or indirect economic benefits that may arise due to the availability of distance learning. The Department did not make any changes to the proposed rules in response to this comment.

Comment--The American Massage Therapy Association expressed support for the proposed rules regarding distance learning, in particular rules requiring detailed oversight. The commenter also stated that it does not support distance learning for any required hands-on or clinical hours.

Department Response--The Department appreciates the comment. The Department did not make any changes to the proposed rules in response to this comment.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Massage Therapy Advisory Board met on October 18, 2021, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register with changes to §§117.50 and 117.59. These changes were made in response to public comment and are recommended by the Department. At its meeting on December 7, 2021, the Commission adopted the proposed rules with changes as recommended by the Advisory Board.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §117.2

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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 455. 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 December 10, 2021.

TRD-202104969

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2022

Proposal publication date: August 20, 2021

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


SUBCHAPTER F. LICENSED MASSAGE SCHOOLS

16 TAC §§117.50, 117.55, 117.58, 117.59, 117.62, 117.66 - 117.68

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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 455. No other statutes, articles, or codes are affected by the adopted rules.

§117.50.Massage School License--General Requirements and Application.

(a) Unless exempt, an individual or entity who provides at a minimum the course of instruction required for licensure to one or more students constitutes a massage therapy educational program and must obtain a massage school license.

(b) To be eligible for a massage school license, an applicant must:

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

(2) submit proof of ownership of the building or a lease agreement for the first twelve (12) months of operation;

(3) provide a current financial statement reviewed by a public accountant and finalized no more than 180 days prior to the application date;

(4) pay the required fee under §117.100;

(5) successfully pass a criminal history background check performed by the department in accordance with the Act, the department's criminal conviction guidelines, and pursuant to Texas Occupations Code, Chapters 51 and 53;

(6) maintain adequate space and equipment to provide training to enrolled students;

(7) comply with all health and safety standards established by the Act and this chapter; and

(8) submit the name and contact information for the school's designated contact person, if applicable.

(c) A massage school must be inspected and approved by the department prior to operation.

(d) The massage school license must be displayed in an appropriate and public manner at the location of the educational program.

(e) A massage school must properly account for the hours granted to each student, in a manner prescribed by the department.

(f) A school shall not engage in any act, directly or indirectly, that grants or approves student hours that were not accrued in accordance with this chapter.

(g) A criminal history check performed under this subsection requires an applicant for a license to submit a complete and legible set of fingerprints, on a form prescribed by the department, to the department or to the Department of Public Safety for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation.

(h) The department may not issue a license to a person who does not comply with the requirements of this section.

(i) The department shall conduct a criminal history record information check of each applicant for a license using information:

(1) provided by the individual under this section; and

(2) made available to the department by the Department of Public Safety, the Federal Bureau of Investigation, and any other criminal justice agency under Chapter 411, Government Code.

(j) For purposes of this section, if the applicant for a license is an entity, the applicant must submit fingerprints as required by this section for each individual who:

(1) personally or constructively holds, including as the beneficiary of a trust:

(A) at least 10 percent of the entity's outstanding stock; or

(B) more than $25,000 of the fair market value of the entity;

(2) has the controlling interest in the entity;

(3) has a direct or indirect participating interest through shares, stock, or otherwise, regardless of whether voting rights are included, of more than 10 percent of the profits, proceeds, or capital gains of the entity;

(4) is a member of the board of directors or other governing body of the entity; or

(5) serves as:

(A) an elected officer of the entity; or

(B) a general manager of the entity.

(k) A massage school must obtain department approval in writing before offering instruction through distance learning. A school must notify the department in writing when changing the technology or method of providing distance learning or offering additional instruction through distance learning.

§117.59.Massage School Curriculum Outline and Internship.

(a) Each massage school shall follow the curriculum outline prescribed by the department for the minimum 500-hour supervised course of instruction.

(b) A student must successfully complete the first 250 hours of the supervised course of instruction, including the successful completion of at least 100 hours of massage therapy techniques and theory, before the student is eligible to enter the internship program.

(c) A classroom hour or instructional hour shall include at least 50 clock minutes of actual instruction time and may include a maximum of 10 minutes of break time. Break time for hours which are taught consecutively in one sitting (i.e., in one evening) may be aggregated into a single break time during those consecutive hours, not to exceed 3-hour blocks of instruction, but not at the end of those hours. The 10 minutes of break time may not be accumulated and used in lieu of lunch or dinner breaks.

(d) An instructor must be physically present with the student(s) during any in-person classroom hours, including in-person make-up work. Any make-up work completed through distance learning must comply with the distance learning provisions in this chapter.

(e) An internship program must provide a student with a minimum of 40 hours of hands-on massage therapy experience at the location of the student's enrollment. A student enrolled at an additional location shall not be required to travel to another location to complete the internship. The internship may not be offered through distance learning. The internship must be completed at a massage school licensed under this chapter.

(f) During the hands-on experience during the internship, a massage therapy instructor must be available on the premises of the massage school and be immediately available to the student(s).

(g) A massage school shall not require a student to advertise for clients or to obtain clients as part of the internship program. At the student's option and with the massage school's permission, a student may obtain clients for the student's hands-on massage therapy experience.

(h) Unless otherwise agreed to by both the student and the massage therapy educational program, a massage school must provide all of the minimum 500 hours of the supervised course of instruction at the physical location of the licensed massage school where the student enrolled or, if otherwise allowed under this chapter and the Act, through distance learning.

(i) A massage school shall schedule instruction and internship clients so that the students will be able to complete the program during the length of time stipulated in the pre-enrollment information. No evening class or required instruction may be scheduled to extend beyond a reasonable time.

(j) Individuals who have completed the required minimum 500-hour supervised course of instruction, including the 50-hour internship, are eligible for examination and licensure.

(k) A massage school shall not allow a student to receive any form of compensation for massage therapy or other massage therapy services.

(l) A massage school shall not allow, authorize, or contract with a student enrolled in any course or portion of a course offered by the school to provide massage therapy or other massage therapy services to the public for compensation in excess of the internship.

(m) Distance learning.

(1) A massage school must verify the identity of a student receiving instruction through distance learning.

(2) A massage school must accurately track the hours each student completes through distance learning.

(3) A massage school must monitor each student's participation in distance learning to ensure that the student is receiving instruction.

(4) Any class, lecture, or recitation, whether offered through live instruction or not, must offer an opportunity for direct interaction between the instructor and the student. The direct interaction may be synchronous or asynchronous. If the direct interaction is asynchronous, the instructor must respond within a reasonable amount of time.

(5) When distance learning is provided through a method other than live instruction, the instruction must involve academic engagement. Academic engagement is active participation by a student in an instructional activity related to the student's course of study. It includes but is not limited to:

(A) participating in an activity where there is an opportunity for interaction between the instructor and the student;

(B) completing and submitting an academic assignment;

(C) taking an assessment or an exam;

(D) participating in an interactive tutorial, webinar, or other interactive computer-assisted instruction;

(E) participating in a study group, group project, or an online discussion that is assigned by the school; and

(F) interacting with an instructor about academic matters.

(6) A massage school must document compliance with paragraphs (1)-(5) for each student who receives instruction through distance learning.

(7) A massage school must ensure that students receiving instruction through distance learning have the educational materials necessary to fulfill all course requirements.

(8) A massage school may not use distance learning to provide the instruction required by Section 455.156(b)(1)(A) of the Act.

(9) A massage school using a time clock or similar technology to track student hours completed through distance learning may not alter the time clock records, except in a documented case of technological failure or other situation which is documented by the school.

(n) As part of the minimum 500-hour supervised course of instruction, a massage school shall provide information in protecting the safety of a massage therapist, including steps to take if a client initiates any verbal or physical contact with the massage therapist that is intended to arouse or gratify the sexual desire of either person. This information may be provided at any time in the 500 hours.

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 December 10, 2021.

TRD-202104970

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2022

Proposal publication date: August 20, 2021

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


SUBCHAPTER G. LICENSED MASSAGE ESTABLISHMENTS

16 TAC §117.82

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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 455. 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 December 10, 2021.

TRD-202104971

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2022

Proposal publication date: August 20, 2021

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


SUBCHAPTER H. RESPONSIBILITIES OF THE LICENSEE AND CODE OF ETHICS

16 TAC §117.91, §117.92

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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 455. 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 December 10, 2021.

TRD-202104972

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2022

Proposal publication date: August 20, 2021

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