TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 110. ATHLETIC TRAINERS

16 TAC §§110.21, 110.23, 110.30, 110.70

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 110, §§110.21, 110.23, 110.30, and 110.70, regarding the Athletic Trainers Program. These proposed changes are referred to as "proposed rules".

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 110 implement Texas Occupations Code, Chapter 451, Athletic Trainers.

The proposed rules consist of recommendations made by a workgroup of the Advisory Board of Athletic Trainers and recommendations from staff. The advisory board workgroup focused on improving the pass rate on the Texas written examination, and it recommended listing the domains that may be tested on the written exam in order to provide advance notice and guidance to students and education providers. The workgroup also recommended updating the required coursework and apprenticeship topics for applicants qualifying under §451.153(a)(1) of the Texas Occupations Code, as the proposed new educational requirements are essential knowledge areas for athletic trainers and are already being taught in athletic training programs across the state.

The remainder of the proposed rule changes were recommended by staff. These include clarification and clean-up changes, changing the term of a temporary license, removing the prohibition on athletic trainers using testimonials in advertising, and allowing the Department to accept Board of Certification (BOC) test results from applicants who successfully completed the exam at any time, not just on or after January 1, 2004. The proposed new end date of a temporary license closes a loophole that was inadvertently created when the rules were amended to require an applicant to pass the written exam before the applicant is eligible to take the practical exam. The proposed rules ensure that a temporary license is not valid indefinitely until the license holder passes the written exam. Instead, the temporary license is valid only until the results are released from the first practical exam that takes place at least 30 days after the temporary license was issued. The 30 days are a minimum window of time in which a temporary license holder could pass the written exam and register for the practical exam. This change also aligns with the intent of the existing rule, which is for the temporary license to expire when the results are released for the first practical examination for which the license holder could register. The proposed amendment removing the prohibition on testimonials in advertising is based on guidance from Office of the Attorney General opinions. Finally, the proposed amendment to accept BOC exam results from before 2004 would allow applicants who have extensive athletic training experience to gain Texas licensure without having to take the Texas exam. In one instance, the January 1, 2004 cut-off date presented a delay in licensure for an applicant who had been BOC certified for 17 years, had two graduate degrees, and had worked as athletic training faculty at two universities. The proposed amendment would save applicants such as this the time and expense of taking another examination, thereby eliminating an unnecessary burden and impediment to licensure.

The Advisory Board of Athletic Trainers (Advisory Board) discussed the proposed rules on December 2, 2019, and recommended publishing the proposed rules, except for the amendment that would provide an exam waiver for applicants who successfully passed the BOC exam before 2004. The Advisory Board was concerned that before 2004, the BOC required a two-year apprenticeship, whereas the corresponding Texas apprenticeship required three years. The Department respects the professional opinion of the Advisory Board, particularly in matters of scope of practice and standard of care. In this case, however, the one-year difference in the apprenticeship has been outweighed by at least 16 years of professional experience. Therefore, the Department is publishing the proposed amendment and recommending removal of the January 1, 2004 cut-off date. The Department has consistently focused its efforts on removing regulations that tend to place unnecessary burdens on licensure. In addition to the Department's own initiatives in this regard, in his October 8, 2019, letter, Governor Abbott instructed Texas state agencies to remove unnecessary and overbroad regulations. The proposed rule would remove an unnecessary impediment to Texas licensure for out-of-state licensees.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §110.21 by adding human physiology as a required course area for licensure under Texas Occupations Code §451.153(a)(1), clarifying that an affiliated apprenticeship setting may be any setting where athletic training takes place, and adding administrative management and assessment of injuries as required apprenticeship topics. The proposed rules also remove from subsection (c)(3) the description of an affiliated setting as being in a collegiate, secondary school, or professional setting as that description includes every setting where athletic training might take place.

The proposed rules amend §110.23 by adding a non-exclusive list of the domains that may be tested on the Texas written examination. The proposed rules also remove the January 1, 2004, date by which an applicant must have passed the BOC examination, in order for the BOC exam results to be accepted in lieu of passing the Texas examination.

The proposed rules amend §110.30 by changing the term of a temporary license and making clean-up changes to better describe the process for issuing temporary licenses. The provision for voiding a temporary license is not necessary because the license term does not extend past a point at which it would need to be voided.

The proposed rules amend §110.70 by removing a prohibition on athletic trainers including testimonials in their advertising and renumbering the section accordingly.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. The proposed rule changes do not impact Department costs. The activities required to implement the changes are routine program administration tasks such as revising publications and websites or tasks included in work already being performed, such as reviewing license applications for specific course content completion and confirmation of passing the BOC exam. These tasks will not result in increased or decreased Department costs. Local governments do not enforce or administer the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules. The proposed rules do not amend or impact the fees assessed by the licensing program, and local governments do not enforce or administer the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. The Athletic Trainers program regulates individuals who provide athletic training services across the state. The proposed rules have no anticipated impact on the local economy because they are not anticipated to increase or decrease employment opportunities for athletic trainers in any area of the state.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit of listing the Texas written exam domains will be providing additional notice to students and educators of topics which may be tested. This may lead to more students being able to pass the written examination and enter the profession earlier. Additionally, the rule changes updating the required coursework and apprenticeship topics may result in improved apprenticeship competency levels and higher exam scores.

The public benefit of the clean-up and clarification changes will be enhanced understanding of the Athletic Trainer rules. In particular, the clarification regarding affiliated apprenticeship settings may lead to more students choosing to gain apprenticeship hours at affiliated settings, and more places partnering with colleges and universities to become affiliated apprenticeship settings. This could, in turn, expand the breadth of experience and knowledge gained by athletic training students.

The public benefit of accepting successful BOC exam results from prior to January 1, 2004, is that applicants who have already demonstrated mastery of athletic training concepts through the BOC exam and who likely have 15 years or more of athletic training experience will not have to re-test. This reduces barriers to entry, making more athletic training services available to the public and allowing applicants to enter the profession in Texas more quickly. Additionally, this change will save these applicants the cost of the Texas exam fee.

The public benefit of limiting the term of a temporary license will be ensuring public health and safety. Specifically, it will ensure that persons who have not yet demonstrated mastery of athletic training through the written exam will not be allowed to practice athletic training indefinitely.

The public benefit of removing the prohibition on athletic trainers using testimonials in advertising will be providing the public with another source of information regarding the services of athletic trainers, and providing athletic trainers with another way to advertise, if they so choose.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. The rules do not impose additional fees upon licensees, nor do they create requirements that would cause licensed athletic trainers to expend funds for training, staff, equipment, supplies, infrastructure, etc. Additionally, changes to required coursework and apprenticeship topics merely update the requirements to those already being taught in colleges and university athletic training programs.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

It is unknown how many licensed athletic trainers can be classified as small or micro-businesses. Most athletic trainers are employed by public and private colleges, universities, high schools, and organized professional or amateur sports teams and leagues. However, athletic trainers classified as small or micro-businesses would not be adversely impacted by the rule changes. The changes are clarifications of existing requirements and prohibitions and do not impose additional fees upon licensees or create requirements that would cause licensees to expend additional funds.

The proposed rules will have no adverse economic effect on rural communities because the proposed rules will not decrease the availability of athletic training services in rural communities, nor will they increase the cost of athletic training services in rural communities.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

The proposed rules do not create or eliminate a government program.

Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

The proposed rules do not require an increase or decrease in fees paid to the agency.

The proposed rules do not create a new regulation.

The proposed rules do expand or limit an existing regulation. They do not repeal an existing regulation. Specifically, the proposed rules expand coursework and apprenticeship requirements in §110.21 and reduce the amount of time a temporary license may be held according to §110.30. The proposed rules limit requirements related to BOC exam dates in §110.23 and testimonials in advertising in §110.70.

The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability.

The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Dalma Sotero, Assistant General Counsel, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51 and Chapter 451, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 451. No other statutes, articles, or codes are affected by the proposed rules.

§110.21.License Requirements.

(a) Applicants qualifying under the Act, §451.153(a)(1), shall have:

(1) a baccalaureate or post-baccalaureate degree, which includes at least 24 hours of combined academic credit from each of the following course areas:

(A) human anatomy and human physiology;

(B) health, disease, nutrition, fitness, wellness, emergency care, first aid, or drug and alcohol education;

(C) kinesiology or biomechanics;

(D) physiology of exercise;

(E) athletic training, sports medicine, or care and prevention of injuries;

(F) advanced athletic training, advanced sports medicine, or assessment of injury; and

(G) therapeutic exercise, therapeutic rehabilitation, or therapeutic modalities; and

(2) an apprenticeship in athletic training meeting the following requirements:

(A) the program shall be under the direct supervision of and on the same campus as a Texas licensed athletic trainer, or if out-of-state, the college or university's certified or state licensed athletic trainer;

(B) the apprenticeship must be a minimum of 1,800 hours. It must be based on the academic calendar and must be completed during at least five fall and/or spring semesters. Hours in the classroom do not count toward apprenticeship hours;

(C) the hours must be completed in college or university intercollegiate sports programs. A maximum of 600 hours of the 1,800 hours may be accepted from an affiliated setting which the college or university's athletic trainer has approved. An affiliated setting may be any setting where athletic training takes place. No more than 300 hours may be earned at one affiliated setting. These hours must be under the direct supervision of a licensed physician, licensed or certified athletic trainer, or licensed physical therapist;

(D) 1,500 hours of the apprenticeship shall be fulfilled while enrolled as a student at a college or university; and

(E) the apprenticeship must offer work experience in a variety of sports. It shall include instruction by a certified or state-licensed athletic trainer in prevention of injuries, emergency care, rehabilitation, [and] modality usage, administrative management, and assessment of injuries.

(b) (No change.)

(c) Applicants qualifying under the Act, §451.153(a)(2) or (a)(3), shall have a baccalaureate or post-baccalaureate degree or a state-issued certificate in physical therapy or a baccalaureate or post-baccalaureate degree in corrective therapy with at least a minor in physical education or health. Applicants who hold such degrees must complete three semester hours of a basic athletic training course from an accredited college or university. An applicant shall also complete an apprenticeship in athletic training meeting the following requirements.

(1) The program shall be a minimum of 720 hours. It must be based on the academic calendar and must be completed during at least three fall and/or spring semesters. The hours must be under the direct supervision of a college or university's Texas licensed athletic trainer or if out-of-state, the college or university's certified or state-licensed athletic trainer. The apprenticeship includes a minimum of 360 hours per year. Hours in the classroom do not count toward apprenticeship hours.

(2) Actual working hours shall include a minimum of 20 hours per week during each fall semester. A fall semester includes pre-season practice sessions. The apprenticeship must offer work experience in a variety of sports.

(3) The apprenticeship must be completed in a college or university's intercollegiate sports program. A maximum of 240 hours of the 720 hours may be earned at an [a collegiate, secondary school, or professional] affiliated setting which the college or university's athletic trainer has approved. An affiliated setting may be any setting where athletic training takes place. No more than 120 hours may be earned at one affiliated setting.

(d) - (h) (No change.)

§110.23.Examination for Licensure.

(a) (No change.)

(b) The examination required under the Act, §451.156 consists of a written examination, a practical examination, and a jurisprudence examination prescribed by the department.

(1) An applicant must pass the written examination prior to taking the practical examination.

(2) An applicant must complete the jurisprudence examination no more than six months prior to the date of application.

(3) The written examination may test subject areas including, but not limited to:

(A) injury and illness prevention and wellness promotion;

(B) examination and assessment;

(C) immediate and emergency care;

(D) therapeutic intervention; and

(E) healthcare administration and professional responsibility.

(c) - (l) (No change.)

(m) If an applicant has successfully completed the examination administered by the Board of Certification, Inc. (BOC) [on or after January 1, 2004], the applicant shall not be required to complete the state examination described in subsections (a) - (l)[, unless the applicant has previously held a license issued by the department]. The applicant must furnish to the department a copy of the test results indicating that the applicant passed the examination.

[(n) If an applicant has completed the examination administered by the Board of Certification, Inc. (BOC) before January 1, 2004, the applicant shall be required to complete the state examination described in subsections (a) - (l).]

§110.30. Temporary License.

(a) (No change.)

(b) The temporary license entitles an applicant to perform the activities of an athletic trainer until the results are released from the first practical examination administered at least 30 days after the temporary license is issued. [results of the first practical examination, which the applicant is eligible to take, are released.]

(c) Except as provided in subsection (d), an applicant shall not be eligible for another temporary license after the initial temporary license is issued. [An applicant who failed an examination administered by the department, shall not be eligible for a temporary license. If a temporary license has previously been issued, it shall be voided and the applicant shall not be eligible for another temporary license.]

(d) (No change.)

§110.70.Standards of Conduct.

(a) - (p) (No change.)

(q) A licensee shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification. False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes advertising that:

(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;

(3) compares a health care professional's service with another health care professional's service, unless the comparison can be factually substantiated;

[(4) contains a testimonial;]

(4) [(5)] causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional;

(5) [(6)] advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided, if the deductibles or copayments are required;

(6) [(7)] advertises or represents that the benefits of a health benefit plan will be accepted as full payment, when deductibles or copayments are required;

(7) [(8)] makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or

(8) [(9)] advertises or represents in the use of a professional name, a title or professional identification, that is expressly or commonly reserved to or used by another profession or professional.

(r) - (y) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000548

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 111, Subchapter B, §111.13; Subchapter C, §111.20 and §111.23; Subchapter D, §111.35 and §111.37; Subchapter E, §§111.41, 111.42, 111.45, and 111.47; Subchapter F, §§111.52, 111.55, and 111.57; Subchapter H, §111.75 and §111.77; Subchapter I, §§111.81, 111.85, and 111.87; Subchapter J, §§111.92, 111.95, and 111.97; Subchapter L, §111.115 and §111.117; Subchapter N, §§111.130 - 111.132; Subchapter P, §§111.150, 111.151, 111.154, and 111.155; Subchapter Q, §111.160; Subchapter R, §111.171; Subchapter T, §111.192; Subchapter U, §111.201; and Subchapter V, §111.212; proposes new rules at Subchapter M, §§111.120 - 111.125; and Subchapter R, §§111.172 - 111.176; and proposes the repeal of existing rules at Subchapter S, §§111.180 - 111.183; and Subchapter U, §111.200, regarding the Speech-Language Pathologists and Audiologists program. These proposed changes are referred to as "proposed rules."

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, and other applicable statutes. The proposed rules are necessary to implement bills from the 86th Legislature, Regular Session (2019) and from the 79th Legislature, Regular Session (2005); implement recommended changes from the Licensing Workgroup; and make terminology and other clean-up changes.

Bill Implementation Changes

The proposed rules are necessary to implement House Bill (HB) 1899, HB 2059, and HB 2847 (Article 7, §§7.001, 7.003, 7.004, and 7.008; and Article 10), 86th Legislature, Regular Session (2019).

HB 1899 requires automatic license denial or revocation for a person who is convicted of or placed on deferred adjudication community supervision for certain crimes or who is required to register as a sex offender. The new statutory provisions under Texas Occupations Code, Chapter 108, Subchapter B, apply to certain health care professionals, including speech-language pathologists, audiologists, interns, and assistants. The proposed rules add provisions providing notice of these new requirements.

HB 2059 requires certain health care practitioners to complete a human trafficking prevention training course approved by the Health and Human Services Commission as a condition for license renewal. Speech-language pathologists, audiologists, interns, and assistants are affected by this bill. The proposed rules implement HB 2059 and the new statutory provisions under Texas Occupations Code, Chapter 116 by requiring licensees under the Speech-Language Pathologists and Audiologists program to take the training course for each license renewal on or after September 1, 2020.

HB 2847 is an omnibus bill that affects multiple programs. Article 7 of the bill applies to multiple programs, including the Speech-Language Pathologists and Audiologists program. Article 7, §7.001 amended Texas Occupations Code, Chapter 51, the Texas Commission of Licensing and Regulation (Commission) and Department's enabling statute, to add new §51.203(b). This new section states that notwithstanding any other law, for each program regulated by the Department, the Commission by rule may establish the length of a license term, not to exceed two years. The proposed rules add references to new Texas Occupations Code §51.203(b) as the authority to have one-year licenses for interns. Notwithstanding Texas Occupations Code §401.351, which requires licenses under Chapter 401 to be two years, the license term for interns will remain at one year pursuant to new §51.203(b). The proposed rules also implement Article 7, §§7.003, 7.004, and 7.008 by providing notice to licensees regarding the new complaint-related provisions.

HB 2847, Article 10 applies to audiologists and interns in audiology who fit and dispense hearing instruments. Article 10 repealed statutory language, which required an audiologist or an intern in audiology, who fits and dispenses hearing instruments, to register with the Department the person's intention to fit and dispense hearing instruments. Article 10 also amended the existing contract requirements to require inclusion of the Department's website address in written contracts. The proposed rules implement these changes.

In addition, the proposed rules are necessary to implement HB 2680, Section 1, 79th Legislature, Regular Session (2005). This section of the bill created Texas Occupations Code, Chapter 112, which reduces the license requirements for certain retired health care practitioners whose only practice is performing voluntary charity care. The proposed rules create and implement retired voluntary charity care licenses and specify the requirements for applying for and holding this type of license. As required by the statute, the proposed rules define voluntary charity care and provide for reduced fees and continuing education requirements. The proposed rules apply to speech-language pathologists, assistants in speech-language pathology, audiologists, and assistants in audiology. The rules do not apply to interns in speech-language pathology or interns in audiology.

Licensing Workgroup Changes

The proposed rules are necessary to implement the changes recommended by the Speech-Language Pathologists and Audiologists Advisory Board's Licensing Workgroup. The proposed rules: (1) remove the prohibition on listing the American Speech-Language-Hearing Association (ASHA) Clinical Fellow (CF) credential in the intern's title under §111.42; (2) make a clean-up change to §111.75 to reflect the correct degree and area of study for an audiology license and to align with the current requirements under §111.70; (3) update the consumer information notice and the license posting requirements under §111.151; and (4) update the language regarding the licensee's "internship year" counting toward the two years of experience necessary to supervise under §111.154.

As part of the Licensing Workgroup's recommendation, several issues were identified for further discussion by the full Advisory Board: (1) whether consumers and the general public understand the titles, certifications, and abbreviations under §111.42; and (2) whether continuing education requirements are necessary for renewal of a speech-language pathology intern license under §111.47 and §111.130. The Advisory Board discussed these issues but did not make any changes to the proposed rules.

Terminology and Other Clean-up Changes.

The proposed rules are necessary to make terminology and other clean-up changes to the rules. These changes include: replacing existing language with gender neutral language; updating references to the jurisprudence examination; updating cross-references to statutes and rules; inserting the standardized criminal history background check language and updating the provision regarding fingerprints; and consolidating the complaint and enforcement provisions into one subchapter.

The proposed rules were presented to and discussed by the Speech-Language Pathologists and Audiologists Advisory Board (Advisory Board) at its meeting on January 24, 2020. The Advisory Board did not make any changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend Subchapter B. Speech-Language Pathologists and Audiologists Advisory Board.

The proposed rules amend §111.13, Officers. The proposed rules update the terminology in subsection (b) to use gender neutral language. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter C. Examinations.

The proposed rules amend §111.20, License Examination--General Requirements. The proposed rules amend this section to update the reference to the jurisprudence examination. (Terminology and Clean-up Changes)

The proposed rules amend §111.23, License Examination--Jurisprudence Examination. The proposed rules amend this section to update the references to the jurisprudence examination. (Terminology and Clean-up Changes)

The proposed rules amend Subchapter D. Requirements for Speech-Language Pathology License.

The proposed rules amend §111.35, Speech-Language Pathology License--Application and Eligibility Requirements. The proposed rules amend subsection (b) to update the reference to the jurisprudence examination. The proposed rules also amend subsection (c) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.37, Speech-Language Pathology License--License Terms; Renewals. The proposed rules amend subsection (d) to insert the standardized criminal history background check language. The proposed rules also update the provision on whether updated fingerprints will be required at renewal. (Terminology and Other Clean-up Changes) The proposed rules also add new subsection (e) to implement HB 2059 regarding the required human trafficking prevention training. (Bill Implementation Changes)

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

The proposed rules amend §111.41, Intern in Speech-Language Pathology License--Internship and Supervision Requirements. The proposed rules amend the terminology in subsection (g) to use gender-neutral language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.42, Intern in Speech-Language Pathology License--Practice and Duties of Interns. The proposed rules restructure the current provisions and remove the prohibition on listing the American Speech-Language-Hearing Association (ASHA) Clinical Fellow (CF) credential in the intern's title. This change allows an individual to list the credential, in addition to the intern's license title. (Licensing Workgroup Changes)

The proposed rules amend §111.45, Intern in Speech-Language Pathology License--Application and Eligibility Requirements. The proposed rules amend subsection (b) to update the reference to the jurisprudence examination. The proposed rules also amend subsection (c) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.47, Intern in Speech-Language Pathology License--License Terms; Renewals. The proposed rules amend subsection (a) to add a reference to new Texas Occupations Code §51.203(b) as the authority to have one-year licenses for interns. The proposed rules also add new subsection (e) to implement HB 2059 regarding the required human trafficking prevention training. (Bill Implementation Changes)

The proposed rules under §111.47 also amend subsection (d) to insert the standardized criminal history background check language. The proposed rules also update the provision on whether updated fingerprints will be required at renewal. (Terminology and Other Clean-up Changes)

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

The proposed rules amend §111.52, Assistant in Speech-Language Pathology License--Practice and Duties of Assistants. The proposed rules amend the terminology in subsection (e) to use gender-neutral language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.55, Assistant in Speech-Language Pathology License--Application and Eligibility Requirements. The proposed rules amend subsection (b) to update the reference to the jurisprudence examination. The proposed rules also amend subsection (c) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.57, Assistant in Speech-Language Pathology License--License Terms; Renewals. The proposed rules amend subsection (d) to insert the standardized criminal history background check language. The proposed rules also update the provision on whether updated fingerprints will be required at renewal. (Terminology and Other Clean-up Changes) The proposed rules also add new subsection (e) to implement HB 2059 regarding the required human trafficking prevention training. (Bill Implementation Changes)

The proposed rules amend Subchapter H. Requirements for Audiology License.

The proposed rules amend §111.75, Audiology License--Application and Eligibility Requirements. The statute requires an applicant for an audiology license to hold a doctoral degree in audiology or a related hearing science. The proposed rules amend subsection (b)(4) to reflect the correct degree and area of study for an audiology license and to align with the current requirements under §111.70(c), Audiology License--Licensing Requirements. (Licensing Workgroup Changes)

The proposed rules under §111.75 also amend subsection (b) to update the reference to the jurisprudence examination. The proposed rules also amend subsection (c) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.77, Audiology License--License Terms; Renewals. The proposed rules amend subsection (d) to insert the standardized criminal history background check language. The proposed rules also update the provision on whether updated fingerprints will be required at renewal. (Terminology and Other Clean-up Changes) The proposed rules also add new subsection (e) to implement HB 2059 regarding the required human trafficking prevention training. (Bill Implementation Changes)

The proposed rules amend Subchapter I. Requirements for Intern in Audiology License.

The proposed rules amend §111.81, Intern in Audiology License--Internship and Supervision Requirements. The proposed rules amend the terminology in subsection (e) to use gender-neutral language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.85, Intern in Audiology License--Application and Eligibility Requirements. The proposed rules amend subsection (b) to update the reference to the jurisprudence examination. The proposed rules also amend subsection (c) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.87, Intern in Audiology License--License Terms; Renewals. The proposed rules amend subsection (a) to add a reference to new Texas Occupations Code §51.203(b) as the authority to have one-year licenses for interns. The proposed rules also add new subsection (e) to implement HB 2059 regarding the required human trafficking prevention training. (Bill Implementation Changes)

The proposed rules under §111.87 also amend subsection (d) to insert the standardized criminal history background check language. The proposed rules also update the provision on whether updated fingerprints will be required at renewal. (Terminology and Other Clean-up Changes)

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

The proposed rules amend §111.92, Assistant in Audiology License--Practice and Duties of Assistants. The proposed rules amend the terminology in subsections (d) and (f) to use gender-neutral language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.95, Assistant in Audiology License--Application and Eligibility Requirements. The proposed rules amend subsection (b) to update the reference to the jurisprudence examination. The proposed rules also amend subsection (c) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.97, Audiology Assistant License--License Terms; Renewals. The proposed rules amend subsection (d) to insert the standardized criminal history background check language. The proposed rules also update the provision on whether updated fingerprints will be required at renewal. (Terminology and Other Clean-up Changes) The proposed rules also add new subsection (e) to implement HB 2059 regarding the required human trafficking prevention training. (Bill Implementation Changes)

The proposed rules amend Subchapter L. Requirements for Dual License in Speech-Language Pathology and Audiology.

The proposed rules amend §111.115, Dual License in Speech-Language Pathology and Audiology--Application and Eligibility Requirements. The proposed rules amend subsection (b) to update the reference to the jurisprudence examination. The proposed rules also amend subsection (c) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.117, Dual License in Speech-Language Pathology and Audiology--License Terms; Renewals. The proposed rules amend subsection (d) to insert the standardized criminal history background check language. The proposed rules also update the provision on whether updated fingerprints will be required at renewal. (Terminology and Other Clean-up Changes) The proposed rules also add new subsection (e) to implement HB 2059 regarding the required human trafficking prevention training. (Bill Implementation Changes)

The proposed rules add new Subchapter M. Retired Voluntary Charity Care Status License.

The proposed rules under new Subchapter M create and implement the retired voluntary charity care license and specify the requirements for applying for and holding this type of license. As required by the statute, the proposed rules define voluntary charity care and provide for reduced fees and continuing education requirements for a retired health care practitioner whose only practice is voluntary charity care. (Bill Implementation Changes)

The proposed rules add new §111.120, Applicability of Subchapter. The proposed rules specify the license types under Chapter 401 that are eligible for retired voluntary charity care status. This subchapter does not apply to the intern licenses. The definition of "volunteer health care provider" under Civil Practice and Remedies Code §84.003, which was referenced in other sections of HB 2680, includes the active and retired versions of the four license types listed in §111.120. Section 84.003 does not include interns. (Bill Implementation Changes)

The proposed rules add new §111.121, Definitions. The proposed rules define "voluntary charity care" and "compensation." (Bill Implementation Changes)

The proposed rules add new §111.122, Eligibility and Initial Application. The proposed rules establish the eligibility and application requirements for obtaining a retired voluntary charity care status license. (Bill Implementation Changes)

The proposed rules add new §111.123, Practice and Disciplinary Actions. The proposed rules establish the practice restrictions for a person holding a retired voluntary charity care status license and specify that a person holding this license is subject to disciplinary action. (Bill Implementation Changes)

The proposed rules add new §111.124, License Term; Renewal. The proposed rules establish a two-year license term for the retired voluntary charity care status license and specify the license renewal requirements, which include reduced continuing education hours. (Bill Implementation Changes)

The proposed rules add new §111.125, Returning to Active Status. The proposed rules establish the requirements for a person who holds a retired voluntary charity care status license and who wants to return to active status. These requirements include completing any additional hours of continuing education to meet the active license renewal requirements and submitting the license renewal fee for the applicable active license. (Bill Implementation Changes)

The proposed rules amend Subchapter N. Continuing Professional Education.

The proposed rules amend §111.130, Continuing Professional Education--Requirements and Hours. The proposed rules amend subsection (e) to specify the reduced continuing education hours for the retired voluntary charity care status licenses. The required hours are half of the continuing education hours required for active licenses. (Bill Implementation Changes)

The proposed rules amend §111.131, Continuing Professional Education--Courses and Credits. The proposed rules amend subsection (d) to update the reference to the jurisprudence examination. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.132, Continuing Professional Education--Records and Audits. The proposed rules update the terminology in subsection (a) to use gender-neutral language; change the references from "license holder" to "licensee" in subsection (d) for consistency purposes within the section; and make other clean-up changes to subsection (d). (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter P. Responsibilities of the Licensee and Code of Ethics.

The proposed rules amend §111.150, Changes of Name, Address, or Other Information. The proposed rules separate existing subsection (b) into two subsections. Subsection (b) addresses the requirements for submitting name changes. New subsection (c) addresses obtaining a duplicate license. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.151, Consumer Information and Display of License. The proposed rules update the consumer information notice and the license posting requirements. The proposed rules allow a licensee, who does not have a primary office or place of employment or who is employed in multiple locations, to carry a current license identification card. The proposed rules prohibit a licensee from displaying a photocopy of a license certificate or carrying a photocopy of an identification card in lieu of the original document. The proposed rules also make clean-up changes. (Licensing Workgroup Change)

The proposed rules amend §111.154, Requirements, Duties, and Responsibilities of Supervisors and Persons Being Supervised. The proposed rules update subsection (a) regarding the licensee's "internship year" counting toward the two years of experience necessary to supervise. This change clarifies that one year of the licensee's internship shall count toward the supervision requirements. (Licensing Workgroup Changes) The proposed rules also update the terminology in subsection (h) to use gender-neutral language. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.155, Standards of Ethical Practice (Code of Ethics). The proposed rules update the statutory cross-references in subsections (a) and (b); update the terminology in subsection (b) to use gender-neutral language; and remove outdated references to "registrant" in subsections (a) and (b). (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter Q. Fees.

The proposed rules amend §111.160, Fees. The proposed rules add a new subsection (i) to specify the reduced fees for the retired voluntary charity care status license. (Bill Implementation Changes)

The proposed rules amend Subchapter R. Complaints.

The proposed rules amend the title of Subchapter R to read "Complaints and Enforcement Provisions." The proposed rules combine Subchapters R and S into one subchapter. The enforcement sections under Subchapter S are being relocated to Subchapter R. (Terminology and Other Clean-up Changes)

The proposed rules amend §111.171, Complaints. The proposed rules update the title of §111.171 to reflect the expanded scope of the section. The proposed rules add new subsection (b) as a notice to licensees and to the public regarding qualified persons, including licensees and advisory board members, assisting the Department in reviewing and investigating complaints and being immune from liability related to those activities. (HB 2847, §7.003)

The proposed rules under §111.171 also add new subsection (c) as a notice to licensees and to the public regarding the confidentiality of complaint and disciplinary information. Former Texas Occupations Code §401.2535 addressed these issues for speech-language pathologists, audiologists, interns, and assistants. HB 2847, Article 7, §7.008, repealed §401.2535 and similar confidentiality provisions in other health professions statutes. HB 2847, Article 7, §7.004, added a new standardized confidentiality provision in Texas Occupations Code, Chapter 51 that is applicable to certain specified health professions, including speech-language pathologists, audiologists, interns, and assistants. (HB 2847, §7.004). (Bill Implementation Changes)

The proposed rules add new §111.172, Administrative Penalties and Sanctions. This new section was former §111.180. There are no proposed changes to the text. (Terminology and Other Clean-up Changes)

The proposed rules add new §111.173, Enforcement Authority. This new section was former §111.181. There are no proposed changes to the text. (Terminology and Other Clean-up Changes)

The proposed rules add new §111.174, Refunds. This new section was former §111.182. There are no proposed changes to the text. (Terminology and Other Clean-up Changes)

The proposed rules add new §111.175, Surrender of License. This new section was former §111.183. The proposed rules add a new subsection (d) to clarify that §111.175 (former §111.183) does not apply to licenses that are subject to the new §111.176, which implements HB 1899. (Bill Implementation Changes)

The proposed rules add new §111.176, Automatic Denials and Revocations. This new section implements HB 1899, Section 8, and specifically new Texas Occupations Code §108.052 and §108.053. These provisions apply to all licenses under this chapter. (Bill Implementation Changes)

The proposed rules repeal Subchapter S. Enforcement Provisions.

Subchapter S is being eliminated, and the complaints and enforcement provisions are being combined under Subchapter R. (Terminology and Other Clean-up Changes)

The proposed rules repeal §111.180, Administrative Penalties and Sanctions. This section has been relocated to new §111.172. (Terminology and Other Clean-up Changes)

The proposed rules repeal §111.181, Enforcement Authority. This section has been relocated to new §111.173. (Terminology and Other Clean-up Changes)

The proposed rules repeal §111.182, Refunds. This section has been relocated to new §111.174. (Terminology and Other Clean-up Changes)

The proposed rules repeal §111.183, Surrender of License. This section has been relocated to new §111.175. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter T. Screening Procedures.

The proposed rules amend §111.192, Newborn Hearing Screening. The proposed rules update the cross-reference to the applicable rules. The cross-referenced rules require referral as soon as possible, but in no case more than 7 days after identification. The proposed rules remove the two-day referral requirement and the specific section citations. The proposed rules cite to the appropriate rule chapters and require licensees to comply with the requirements contained within. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter U. Fitting and Dispensing of Hearing Instruments.

The proposed rules repeal §111.200, Registration of Audiologists and Interns in Audiology to Fit and Dispense Hearing Instruments. The proposed rules implement HB 2847, Article 10 by repealing the requirement for an audiologist or an intern in audiology, who fits and dispenses hearing instruments, to register with the Department the person's intention to fit and dispense hearing instruments. (Bill Implementation Changes)

The proposed rules amend §111.201, General Practice Requirements of Audiologists and Interns in Audiology Who Fit and Dispense Hearing Instruments. The proposed rules implement HB 2847, Article 10 by removing language regarding the audiologist or the intern in audiology being "registered" to fit and dispense hearing instruments and by requiring inclusion of the Department's website address in written contracts. Any changes to the written contract provisions in §111.220, Joint Rules on Fitting and Dispensing Hearing Instruments, will need to be made separately in conjunction with the Hearing Instrument Fitters and Dispensers Advisory Board. (Bill Implementation Changes)

The proposed rules under §111.201 also update the terminology in paragraph (2) to use gender-neutral language and make other clean-up changes in paragraph (2). (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter V. Telehealth.

The proposed rules amend §111.212, Requirements for the Use of Telehealth by Speech-Language Pathologists. The proposed rules make clean-up changes to subsections (e) and (j). (Terminology and Other Clean-up Changes)

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state as a result of enforcing or administering the proposed rules. It is estimated that the costs to administer or enforce the proposed rule changes to be minimal, if any, to the State. The activities required to implement the proposed rule changes are one-time program administration tasks that are routine in nature, such as modifying or revising forms, publications, and website information. There is no anticipated reduction in costs to the State. A reduction in costs only results when duties and functions are removed from the Department by the rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to local government as a result of enforcing or administering the proposed rules. Local government does not regulate state licensure of speech-language pathologists or audiologists.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to state government as a result of enforcing or administering the proposed rules. An increase in revenue only results when new or increased fees are paid to the agency. No new fees or increased fees have been proposed. There will be no fee required for the new Retired Voluntary Charity Care Status License. HB 2059 sets out the requirement for licensees to complete the human trafficking prevention training and requires the Health and Human Services Commission (HHSC) to provide at least one free human trafficking prevention training option. If a licensee chooses to pay a fee for the required training, the cost is discretionary and the fee would be paid to the training provider and not to the Department. In addition, no existing fees are removed by the proposed rules. A loss in revenue only results when fees paid to the agency are removed by the rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to local government as a result of enforcing or administering the proposed rules. Fees associated with the program are remitted to the state and not to local governments.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state or local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Texas Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be the implementation of HB 1899, HB 2059, HB 2847, and HB 2680 for more effective regulation of the Speech-Language Pathology and Audiology Program. In implementing these bills, the rules will align with the updated statutes and will notify licensees and the public regarding requirements affecting this program. In implementing HB 2059, the HHSC-approved human trafficking prevention training courses will educate and bring awareness to licensees on how to identify the signs of human trafficking, which is a benefit to the public. In implementing HB 2847, individuals who assist the agency with complaints and investigations will be immune from liability, which may increase availability of subject matter experts and could lead to a faster resolution of complaints and investigations. In implementing HB 2680, certain retired health care practitioners will be allowed to perform charity care with reduced licensing requirements at no cost.

The proposed rules will also benefit licensees by allowing licensees to include ASHA-credential information in addition to license title information and by allowing licensees to carry a license identification card when the licensee does not have a primary office or place of employment. These same rules also benefit the public by providing additional information about the licensees.

The public and the licensees will also benefit from the clean-up changes made to the rules throughout the chapter. These changes will result in rules that align with current agency practice, conform to the enabling statute, function more efficiently and effectively, and are more user-friendly. An effective regulatory program for speech-language pathologists and audiologist enhances the public health, safety, and welfare.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. Regarding the human trafficking prevention training, HB 2059 sets out the requirement for licensees to complete the training, and it requires the Health and Human Services Commission (HHSC) to approve these training courses and to provide at least one free training course option. If a licensee chooses to pay a fee for the required training, that cost would be discretionary on the part of the licensee and would not be a result of the Department's proposed rules. Additionally, any cost to attend a human trafficking prevention training course would be established by the training provider and therefore cannot be estimated by the Department. Any costs associated with the human trafficking prevention training are a result of the new statute, Texas Occupations Code, Chapter 116, as added by HB 2059. There are no costs imposed by the Department's proposed rules.

Regarding the updates to the written contracts, HB 2847, Article 10 requires certain license holders to have the Department's website address included on their written contracts. License holders should be able to provide an updated written agreement for little or no cost. For those license holders whose contracts do not already include the required language, the Department anticipates that it will require a one-time update to their electronic forms. Since each written contract is customized to the client, it will not place a burden on the license holder to add the required information. The Department's information would only need to be added to a template one time and would not need to be changed with each new contract. Any costs associated with the contract changes would be miniscule and are a result of changes to the statute made by HB 2847, Article 10. There are no costs imposed by the Department's proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Texas Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Texas Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do create a new regulation. The proposed rules implement HB 2059 and create a new regulation (rule) requiring licensees under Chapter 401 to complete a HHSC-approved human trafficking prevention training course as a condition of license renewal. This requirement becomes effective September 1, 2020. The proposed rules also implement HB 2680 and create new regulations (rules) allowing for certain retired health care practitioners who perform volunteer charity care to obtain a newly-created Retired Voluntary Charity Care Status License, which has reduced licensing requirements.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules implement changes due to HB 1899, HB 2059, HB 2847, and HB 2680; implement changes recommended by the Licensing Workgroup; and make terminology and other clean-up changes. The proposed rules repeal the prohibition on listing the American Speech-Language-Hearing Association (ASHA) Clinical Fellow (CF) credential in the intern's title. The proposed rules remove the requirement for an audiologist or an intern in audiology, who fits and dispenses hearing instruments, to register with the Department the person's intention to fit and dispense hearing instruments.

7. The proposed rules do increase or decrease the number of individuals subject to the rule's applicability. The proposed rules implementing HB 2680 allow for certain retired health care practitioners who perform charity work to obtain a newly-created Retired Voluntary Charity Care Status License, which has reduced licensing requirements. The new rules will apply to those practitioners.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Dalma Sotero, Assistant General Counsel, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER B. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS ADVISORY BOARD

16 TAC §111.13

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.13.Officers.

(a) (No change.)

(b) The presiding officer shall preside at all meetings at which the presiding officer [he or she] is in attendance. The presiding officer of the advisory board may vote on any matter before the advisory board.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000483

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER C. EXAMINATIONS

16 TAC §111.20, §111.23

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.20.License Examination--General Requirements.

The examination required by the Act shall consist of a written examination and a jurisprudence examination [Jurisprudence Examination].

§111.23.License Examination--Jurisprudence Examination.

(a) The department shall develop and administer a jurisprudence examination [Jurisprudence Examination] to determine an applicant's knowledge of the Act, this chapter, and any other applicable laws of this state affecting the practice of speech-language pathology or audiology.

(b) The department shall revise the jurisprudence examination [Jurisprudence Examination] as needed.

(c) All applicants for licensure shall submit proof of successful completion of the jurisprudence examination [Jurisprudence Examination] at the time of application, unless applying for an upgrade. The jurisprudence examination [Jurisprudence Examination] must be completed no more than 12 months prior to the date of licensure application.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000484

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER D. REQUIREMENTS FOR SPEECH-LANGUAGE PATHOLOGY LICENSE

16 TAC §111.35, §111.37

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.35.Speech-Language Pathology License--Application and Eligibility Requirements.

(a) (No change.)

(b) An applicant for a speech-language pathology license must submit the following required documentation:

(1) - (7) (No change.)

(8) proof of successfully completing the jurisprudence examination [Texas Jurisprudence Examination] under §111.23; and

(9) (No change.)

(c) If not previously submitted when applying for an assistant or intern license, an applicant for a speech-language pathology license must submit a completed legible set of fingerprints, on a department-approved form, to the Department of Public Safety for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(d) - (f) (No change.)

§111.37.Speech-Language Pathology License--License Terms; Renewals.

(a) - (c) (No change.)

(d) A licensee must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines in order to renew the license. The department will notify the licensee if the person needs [; however, the licensee does not need] to submit new fingerprints.

(e) For each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(f) [(e)] The department may deny the renewal of the license pursuant to Texas Occupations Code §401.451.

(g) [(f)] If all conditions required for renewal are met prior to expiration, the department shall issue a renewed license.

(h) [(g)] A person whose license has expired may late renew the license in accordance with the procedures set out under §60.31 and §60.83 of this title.

(i) [(h)] A person whose license has expired may not practice or engage in speech-language pathology.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000485

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


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

16 TAC §§111.41, 111.42, 111.45, 111.47

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.41.Intern in Speech-Language Pathology License--Internship and Supervision Requirements.

(a) - (f) (No change.)

(g) Changes in Internship. Prior to implementing changes in the internship, approval from the department is required.

(1) If the intern changes the intern's [his or her] supervisor or adds additional supervisors, a current Speech-Language Pathology Intern Plan and Agreement of Supervision Form shall be submitted by the new proposed supervisor and approved by the department before the intern may resume practice as prescribed under subsection (c).

(2) If the intern changes the intern's [his or her] supervisor, the Speech-Language Pathology Report of Completed Internship Form shall be completed by the former supervisor and the intern and submitted to the department upon completion of that portion of the internship. It is the decision of the former supervisor to determine whether the internship is acceptable. The department shall review the form and inform the intern of the results.

(3) - (4) (No change.)

(5) If the intern changes the intern's [his or her] employer but the supervisor and the number of hours employed per week remain the same, the supervisor shall notify the department in a manner prescribed by the department of the new location. This must be submitted within thirty (30) days of the date the change occurred.

(h) (No change.)

§111.42.Intern in Speech-Language Pathology License--Practice and Duties of Interns.

(a) - (b) (No change.)

(c) The intern must use "Intern SLP" or "SLP Intern" if the intern wishes to shorten the intern's professional title.

[(c) An intern shall not use "SLP-CFY" or "SLP-CF" as indicators for their credentials. Licensees shall use "Intern SLP" or "SLP Intern" to shorten their professional title.]

(d) An intern who is pursuing the ASHA Clinical Fellow credential may use "SLP-CF" or "CF" in the intern's title, in addition to "Intern SLP", "SLP Intern", or the full professional title. The "SLP-CF" or "CF" credential indicator is not a substitute for the use of "Intern SLP", "SLP Intern", or the full professional title.

(e) [(d)] If the intern wishes to continue to practice after the completion of the internship specified in §111.41(d), the intern shall apply for a speech-language pathology license under Subchapter D, if the intern passed the examination referenced in §111.21.

(f) [(e)] The intern may continue to practice while awaiting the processing of the speech-language pathology license if the intern meets the following conditions:

(1) - (3) (No change.)

§111.45.Intern in Speech-Language Pathology License--Application and Eligibility Requirements.

(a) (No change.)

(b) An applicant for an intern in speech-language pathology license must submit the following required documentation:

(1) - (6) (No change.)

(7) proof of successfully completing the jurisprudence examination [Texas Jurisprudence Examination] under §111.23; and

(8) (No change.)

(c) If not previously submitted when applying for an assistant license, an applicant for an intern in speech-language pathology license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(d) (No change.)

§111.47.Intern in Speech-Language Pathology License--License Terms; Renewals.

(a) Pursuant to §51.203(b), an [An] intern in speech-language pathology license is valid for one year from the date of issuance and may be renewed annually.

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

(d) A licensee must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines in order to renew the license. The department will notify the licensee if the person needs[; however, the licensee does not need] to submit new fingerprints.

(e) For each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(f) [(e)] The department may deny the renewal of the license pursuant to Texas Occupations Code §401.451.

(g) [(f)] If all conditions required for renewal are met prior to expiration, the department shall issue a renewed license.

(h) [(g)] A person whose license has expired may late renew the license in accordance with the procedures set out under §60.31 and §60.83 of this title.

(i) [(h)] A person whose license has expired may not practice or engage in speech-language pathology.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000487

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


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

16 TAC §§111.52, 111.55, 111.57

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.52.Assistant in Speech-Language Pathology License--Practice and Duties of Assistants.

(a) - (d) (No change.)

(e) An assistant may represent special education and speech pathology at the Admission, Review, and Dismissal (ARD) meetings with the following stipulations:[.]

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

(3) The assistant may attend, with written approval of the supervisor, a student's annual review ARD meeting if the meeting involves a student for whom the assistant provides services. If an assistant attends a meeting as provided by this rule, the supervisor is not required to attend the meeting. A supervisor must attend an ARD meeting if the purpose of the meeting is to develop a student's initial Individual Education Program (IEP) or if the meeting is to consider the student's dismissal, unless the supervisor has submitted the supervisor's [his or her] recommendation in writing on or before the date of the meeting.

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

(f) (No change.)

§111.55.Assistant in Speech-Language Pathology License--Application and Eligibility Requirements.

(a) (No change.)

(b) An applicant for an assistant in speech-language pathology license must submit the following required documentation:

(1) - (5) (No change.)

(6) proof of successfully completing the jurisprudence examination [Texas Jurisprudence Examination] under §111.23; and

(7) (No change.)

(c) An applicant for an assistant in speech-language pathology license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(d) (No change.)

§111.57.Assistant in Speech-Language Pathology License--License Terms; Renewals.

(a) - (c) (No change.)

(d) A licensee must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines in order to renew the license. The department will notify the licensee if the person needs[; however, the licensee does not need] to submit new fingerprints.

(e) For each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(f) [(e)] The department may deny the renewal of the license pursuant to Texas Occupations Code §401.451.

(g) [(f)] If all conditions required for renewal are met prior to expiration, the department shall issue a renewed license.

(h) [(g)] A person whose license has expired may late renew the license in accordance with the procedures set out under §60.31 and §60.83 of this title.

(i) [(h)] A person whose license has expired may not practice or engage in speech-language pathology.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000488

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER H. REQUIREMENTS FOR AUDIOLOGY LICENSE

16 TAC §111.75, §111.77

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.75.Audiology License--Application and Eligibility Requirements.

(a) (No change.)

(b) An applicant for an audiology license must submit the following required documentation:

(1) - (3) (No change.)

(4) if the applicant's transcript is in a language other than English or the degree was earned at a foreign university, an original evaluation form from an approved transcript evaluation service stating that the applicant's degree is a doctoral degree in audiology or a related hearing science [master's degree or higher with a major in one of the areas of communicative sciences or disorders];

(5) - (7) (No change.)

(8) proof of successfully completing the jurisprudence examination [Texas Jurisprudence Examination] under §111.23; and

(9) (No change.)

(c) If not previously submitted when applying for an assistant or intern license, an applicant for an audiology license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(d) - (f) (No change.)

§111.77.Audiology License--License Terms; Renewals.

(a) - (c) (No change.)

(d) A licensee must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines in order to renew the license. The department will notify the licensee if the person needs[; however, the licensee does not need] to submit new fingerprints.

(e) For each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(f) [(e)] The department may deny the renewal of the license pursuant to Texas Occupations Code §401.451.

(g) [(f)] If all conditions required for renewal are met prior to expiration, the department shall issue a renewed license.

(h) [(g)] A person whose license has expired may late renew the license in accordance with the procedures set out under §60.31 and §60.83 of this title.

(i) [(h)] A person whose license has expired may not practice or engage in audiology.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000490

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER I. REQUIREMENTS FOR INTERN IN AUDIOLOGY LICENSE

16 TAC §§111.81, 111.85, 111.87

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.81.Intern in Audiology License--Internship and Supervision Requirements.

(a) - (d) (No change.)

(e) Changes in Internship. Prior to implementing changes in the internship, written approval from the department is required.

(1) If the intern changes the intern's [his or her] supervisor or adds additional supervisors, a current Audiology Intern Plan and Agreement of Supervision Form shall be submitted by the new proposed supervisor and approved by the department before the intern may resume practice as prescribed under subsection (c).

(2) If the intern changes the intern's [his or her] supervisor, the Audiology Report of Completed Internship Form shall be completed by the former supervisor and the intern and submitted to the department upon completion of that portion of the internship. It is the decision of the former supervisor to determine whether the internship meets the department's requirements. The department shall review the form and inform the intern of the results.

(3) A supervisor who ceases supervising an intern shall submit an Audiology Report of Completed Internship Form for the portion of the internship completed under the supervisor's [his or her] supervision. This must be submitted within 30 days of the date the supervision ended.

(4) (No change.)

(5) If the intern changes the intern's [his or her] employer but the supervisor and the number of hours employed per week remain the same, the supervisor shall submit a signed statement or submit in a manner prescribed by the department giving the name, address and phone number of the new location. This must be submitted within thirty (30) days of the date the change occurred.

(f) (No change.)

§111.85.Intern in Audiology License--Application and Eligibility Requirements.

(a) (No change.)

(b) An applicant for an intern in audiology license must submit the following required documentation:

(1) - (3) (No change.)

(4) proof of successfully completing the jurisprudence examination [Texas Jurisprudence Examination] under §111.23; and

(5) (No change.)

(c) If not previously submitted when applying for an assistant license, an applicant for an intern in audiology license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(d) (No change.)

§111.87.Intern in Audiology License--License Terms; Renewals.

(a) Pursuant to §51.203(b), an [An] intern in audiology license is valid for one year from the date of issuance and may be renewed annually.

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

(d) A licensee must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines in order to renew the license. The department will notify the licensee if the person needs[; however, the licensee does not need] to submit new fingerprints.

(e) For each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(f) [(e)] The department may deny the renewal of the license pursuant to Texas Occupations Code §401.451.

(g) [(f)] If all conditions required for renewal are met prior to expiration, the department shall issue a renewed license.

(h) [(g)] A person whose license has expired may late renew the license in accordance with the procedures set out under §60.31 and §60.83 of this title.

(i) [(h)] A person whose license has expired may not practice or engage in audiology.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000492

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER J. REQUIREMENTS FOR ASSISTANT IN AUDIOLOGY LICENSE

16 TAC §§111.92, 111.95, 111.97

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.92.Assistant in Audiology License--Practice and Duties of Assistants.

(a) - (c) (No change.)

(d) The assistant shall not:

(1) - (14) (No change.)

(15) present written or oral reports of client information, except to the assistant's [his or her] supervisor;

(16) - (18) (No change.)

(e) (No change.)

(f) A licensed assistant in audiology may not engage in the fitting, dispensing or sale of a hearing instrument under this chapter; however, a licensed assistant in audiology who is licensed under the Texas Occupations Code, Chapter 402 may engage in activities as allowed by that law and is not considered to be functioning under the person's [his or her] assistant in audiology license when performing those activities.

§111.95.Assistant in Audiology License--Application and Eligibility Requirements.

(a) (No change.)

(b) An applicant for an assistant in audiology license must submit the following required documentation:

(1) - (6) (No change.)

(7) proof of successfully completing the jurisprudence examination [Texas Jurisprudence Examination] under §111.23; and

(8) (No change.)

(c) An applicant for an assistant in audiology license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(d) (No change.)

§111.97.Audiology Assistant License--License Terms; Renewals.

(a) - (c) (No change.)

(d) A licensee must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines in order to renew the license. The department will notify the licensee if the person needs[; however, the licensee does not need] to submit new fingerprints.

(e) For each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under the Texas Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(f) [(e)] The department may deny the renewal of the license pursuant to Texas Occupations Code §401.451.

(g) [(f)] If all conditions required for renewal are met prior to expiration, the department shall issue a renewed license.

(h) [(g)] A person whose license has expired may late renew the license in accordance with the procedures set out under §60.31 and §60.83 of this title.

(i) [(h)] A person whose license has expired may not practice or engage in audiology.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000493

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER L. REQUIREMENTS FOR DUAL LICENSE IN SPEECH-LANGUAGE PATHOLOGY AND AUDIOLOGY

16 TAC §111.115, §111.117

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.115.Dual License in Speech-Language Pathology and Audiology--Application and Eligibility Requirements.

(a) (No change.)

(b) An applicant for a dual license in speech-language pathology and audiology must submit the following required documentation:

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

(3) proof of successfully completing the jurisprudence examination [Texas Jurisprudence Examination] under §111.23; and

(4) (No change.)

(c) If not previously submitted when applying for a full license, assistant license, or intern license, an applicant for a dual license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety for the purpose of obtaining criminal history record information, unless the applicant has already submitted fingerprints as part of a single license. An applicant must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(d) (No change.)

§111.117.Dual License in Speech-Language Pathology and Audiology--License Terms; Renewals.

(a) - (c) (No change.)

(d) A licensee must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines in order to renew the license. The department will notify the licensee if the person needs [; however, the licensee does not need] to submit new fingerprints.

(e) For each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(f) [(e)] The department may deny the renewal of the license pursuant to Texas Occupations Code §401.451.

(g) [(f)] If all conditions required for renewal are met prior to expiration, the department shall issue a renewed license.

(h) [(g)] A person whose license has expired may late renew the license in accordance with the procedures set out under §60.31 and §60.83 of this title.

(i) [(h)] A person whose license has expired may not practice or engage in speech-language pathology or audiology.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000494

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER M. RETIRED VOLUNTARY CHARITY CARE STATUS LICENSE

16 TAC §§111.120 - 111.125

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.120.Applicability of Subchapter.

This subchapter implements Texas Occupations Code, Chapter 112. This subchapter applies to a person who holds a license as an audiologist, an assistant in audiology, a speech-language pathologist, or an assistant in speech-language pathology, or who holds a dual license in speech-language pathology and audiology.

§111.121.Definitions.

As used in this subchapter:

(1) Voluntary charity care--The practice or services of a licensee under this subchapter without compensation or expectation of compensation.

(2) Compensation--Direct or indirect payment of anything of monetary value, except payment or reimbursement of reasonable, necessary, and actual travel and related expenses.

§111.122.Eligibility and Initial Application.

(a) To be eligible for a retired voluntary charity care status license, the person must:

(1) hold an active license listed under §111.120;

(2) not have any pending or current disciplinary actions against the person or the person's license; and

(3) not be employed, under contract, or otherwise engaged in the practice of speech-language pathology or audiology for compensation.

(b) To apply for a retired voluntary charity care status license, the person must:

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

(2) certify in writing that the person is retired and will provide only voluntary charity care; and

(3) submit any license application fee required under §111.160.

(c) The person must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines. The department will notify the licensee if the person needs to submit new fingerprints.

§111.123.Practice and Disciplinary Actions.

(a) A person holding a retired voluntary charity care status license:

(1) may not provide speech-language pathology or audiology services for compensation; and

(2) is limited to providing only those services authorized under the active license that the person held prior to holding the retired voluntary charity care status license.

(b) A person holding a retired voluntary charity care status is subject to disciplinary action for:

(1) a violation of the Act or the rules adopted under this chapter;

(2) obtaining, or attempting to obtain, retired voluntary charity care status by submitting false or misleading information to the department; or

(3) engaging in the practice of speech-language pathology or audiology for compensation.

§111.124.License Term; Renewal.

(a) A retired voluntary charity care status license is valid for two years from the date of issuance and may be renewed biennially.

(b) To renew a retired voluntary charity care status license, a licensee must:

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

(2) complete the continuing education hours as required under §111.130;

(3) comply with the continuing education audit process described under §111.132, if selected for an audit; and

(4) submit any license renewal fee required under §111.160.

(c) A licensee must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines in order to renew the license.

(d) For each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(e) The department may deny the renewal of the license pursuant to Texas Occupations Code §401.451.

(f) If all conditions required for renewal are met prior to expiration, the department shall issue a renewed license.

(g) A person whose license has expired may late renew the license in accordance with the procedures set out under §60.31 and §60.83 of this title.

(h) A person whose license has expired may not practice or engage in speech-language pathology or audiology or perform voluntary charity care.

§111.125.Returning to Active Status.

(a) A person who holds a retired voluntary charity care status license and who wants to return to active status must:

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

(2) complete any additional hours of continuing education under §111.130 to meet the active license renewal requirements;

(3) certify completion of the required continuing education hours; and

(4) submit the license renewal fee for the applicable active license under §111.160.

(b) A licensee must successfully pass a criminal history background check pursuant to Texas Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(c) The department may require additional information, education, examinations, or training from a person who has been on retired voluntary charity care status for more than two years before returning to active status.

(d) The application must be approved by the department before the person can return to active status and provide speech-language pathology or audiology services for compensation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000508

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER N. CONTINUING PROFESSIONAL EDUCATION

16 TAC §§111.130 - 111.132

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.130.Continuing Professional Education--Requirements and Hours.

(a) - (d) (No change.)

(e) The following minimum continuing education hours and units are required to renew a license:

(1) (No change.)

(2) Dual license in speech-language pathology and audiology (two-year term): 30 clock hours (three CEUs), with 2 clock hours (0.2 CEUs) in ethics; [and]

(3) Intern in speech-language pathology license (one-year term): 10 clock hours (1 CEUs), with 1 clock hour (0.1 CEU) in ethics;[.]

(4) Retired voluntary charity care license (two-year term): 10 clock hours (one CEUs), with 1 clock hour (0.1 CEUs) in ethics; and

(5) Retired voluntary charity care license for a dual license in speech-language pathology and audiology (two-year term): 15 clock hours (1.5 CEUs), with 1 clock hour (0.1 CEUs) in ethics.

(f) - (g) (No change.)

§111.131.Continuing Professional Education--Courses and Credits.

(a) - (c) (No change.)

(d) Completion of the jurisprudence examination [Jurisprudence Examination] shall count as one hour of the continuing education requirement for professional ethics per renewal period.

§111.132.Continuing Professional Education--Records and Audits.

(a) The licensee shall be responsible for maintaining a record of the licensee's [his or her] continuing education experiences for at least three years.

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

(d) The audit process shall be as follows.

(1) The department shall select for audit a random sample of licensees [license holders] for each renewal month. Licensees [License holders] will be notified of the continuing education audit when they receive their renewal documentation.

(2) (No change.)

(3) Failure to timely furnish this information or providing false information during the audit process or the renewal process are grounds for disciplinary action against the licensee [license holder].

(4) (No change.)

(5) Licenses will not be renewed until the continuing education [Continuing Education] requirements have been met.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000496

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER P. RESPONSIBILITIES OF THE LICENSEE AND CODE OF ETHICS

16 TAC §§111.150, 111.151, 111.154, 111.155

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.150.Changes of Name, Address, or Other Information.

(a) (No change.)

(b) A request to change the name currently on record must be submitted in writing with a copy of a divorce decree, marriage certificate, legal name change document, or social security card showing the new name.

(c) To receive a duplicate license, the [The] licensee shall submit the duplicate/replacement fee required under §111.160.

§111.151.Consumer Information and Display of License.

(a) A licensee shall notify each client of the name, mailing address, telephone number and website of the department for the purpose of directing complaints to the department. A licensee shall display this notification:

(1) on a sign prominently displayed in the primary office or place of employment [place of business] of the [each] licensee, if any; and

(2) (No change.)

(b) A licensee shall display the license certificate in the primary office or place of employment. In the absence of a primary office or place of employment or when the licensee is employed in multiple locations, the licensee shall carry a current license identification card [with a current license card as issued by the department in the primary location of practice].

(c) A licensee shall not display a photocopy of a license certificate or carry a photocopy of an identification card in lieu of the original document. A file copy shall be clearly marked as a copy across the face of the document.

(d) [(c)] A licensee shall not make any alteration on a license certificate or identification card [official documents issued by the department].

§111.154.Requirements, Duties, and Responsibilities of Supervisors and Persons Being Supervised.

(a) A licensee must have two years of professional experience in providing direct client services in the area of licensure in order to supervise an intern or assistant. One year of the licensee's internship shall be counted toward the two years of experience. [The licensee's internship year shall be counted toward the two years of experience.]

(b) - (g) (No change.)

(h) A licensed intern or assistant shall abide by the decisions made by the [his or her] supervisor relating to the intern's or assistant's practice and duties. If the supervisor requests that the intern or assistant violate this chapter, the Act, or any other law, the intern or assistant shall refuse to do so and immediately notify the department and any other appropriate authority.

§111.155.Standards of Ethical Practice (Code of Ethics).

(a) A licensee shall:

(1) - (15) (No change.)

(16) be subject to disciplinary action by the department if the licensee [or registrant] is issued a written reprimand, is assessed a civil penalty by a court, or has an administrative penalty imposed by the attorney general's office under the Crime Victims Compensation Act, Texas Code of Criminal Procedure, Chapter 56, Subchapter B (effective until January 1, 2021) and Chapter 56B (effective on January 1, 2021) [Article 56.31 (relating to the Crime Victims Compensation Act)];

(17) - (18) (No change.)

(b) A licensee shall not:

(1) - (3) (No change.)

(4) delegate any service requiring professional competence of a licensee [or registrant] to anyone not licensed [or registered] for the performance of that service;

(5) - (9) (No change.)

(10) participate in activities that constitute a conflict of professional interest which may include the following:

(A) (No change.)

(B) lack of accuracy in the performance description of a product a licensee [or registrant] has developed; or

(C) (No change.)

(11) use the licensee's [his or her] professional relationship with a client, intern, assistant, or student to promote for personal gain or profit any item, procedure, or service unless the licensee [or registrant] has disclosed to the client, intern, assistant, or student the nature of the licensee's [or registrant's] personal gain or profit;

(12) misrepresent the licensee's [his or her] training or competence;

(13) - (15) (No change.)

(16) intentionally or knowingly offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for securing or soliciting clients or patronage for or from any health care professional[. The provisions of the Texas Health and Safety Code §161.091, concerning the prohibition of illegal remuneration apply to licensees];

(17) - (18) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000497

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER Q. FEES

16 TAC §111.160

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.160.Fees.

(a) - (h) (No change.)

(i) Retired Voluntary Charity Care Status License:

(1) Initial application fee--$0.

(2) Renewal application fee--$0.

(j) [(i)] A duplicate/replacement fee for a license or certificate issued under this chapter is $25.

(k) [(j)] Late renewal fees for licenses issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(l) [(k)] A dishonored/returned check or payment fee is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

(m) [(l)] The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000498

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER R. COMPLAINTS AND ENFORCEMENT PROVISIONS

16 TAC §§111.171 - 111.176

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.171.Complaints [Regarding Standard of Care].

(a) The commission has adopted rules related to handling complaints regarding standard of care pursuant to Texas Occupations Code §51.2031. These rules are located at 16 Texas Administrative Code Chapter 100.

(b) A qualified person may assist the department in the review and investigation of complaints and will be immune from liability related to these activities pursuant to Texas Occupations Code §51.252.

(c) The provisions regarding the confidentiality of complaint and disciplinary information are provided under Texas Occupations Code §51.254.

§111.172.Administrative Penalties and Sanctions.

If a person or entity violates any provision of Texas Occupations Code, Chapters 51 or 401, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapters 51 and 401, as applicable, and any associated rules.

§111.173.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapters 51 and 401 and any associated rules may be used to enforce Texas Occupations Code, Chapter 401 and this chapter.

§111.174.Refunds.

(a) The commission or executive director may order an audiologist to pay a refund to a consumer who returns a hearing instrument(s) during the 30-day trial period required by the rules adopted under Subchapter W (regarding Joint Rule Regarding the Sale of Hearing Instruments).

(b) If the 30-day period ends on a Sunday or a holiday, then the 30-day period shall not expire until the next business day.

(c) The licensee shall have thirty (30) days from the date of a consumer's return of the hearing instrument(s) to reimburse the consumer.

(d) In the event that the licensee fails to reimburse the consumer within the prescribed period in subsection (c), then the licensee may be subject to additional penalties and/or sanctions provided for under the Act and rules.

§111.175.Surrender of License.

(a) A licensee may offer to surrender the license to the executive director. The executive director will accept the voluntary surrender of the license and void it immediately.

(b) When a licensee has offered the surrender of the license after a complaint has been filed alleging violations of the Act or this chapter, and the executive director has accepted the surrender, that surrender is deemed to be the result of a formal disciplinary action.

(c) A license which has been surrendered and accepted may not be reinstated; however, that person may apply for a new license in accordance with the Act and this chapter.

(d) This section does not apply to a license that is subject to §111.176.

§111.176.Automatic Denials and Revocations.

(a) The department shall deny an application for a license, and shall revoke a license issued under Chapter 401, under the circumstances set forth in Texas Occupations Code, Chapter 108, Subchapter B.

(b) A person whose application for a license has been denied, or whose license has been revoked, pursuant to Texas Occupations Code, Chapter 108, Subchapter B, may reapply or seek reinstatement as provided by that subchapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000499

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER S. ENFORCEMENT PROVISIONS

16 TAC §§111.180 - 111.183

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.180.Administrative Penalties and Sanctions.

§111.181.Enforcement Authority.

§111.182.Refunds.

§111.183.Surrender of License.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000510

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER T. SCREENING PROCEDURES

16 TAC §111.192

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.192.Newborn Hearing Screening.

(a) (No change.)

(b) Individuals licensed under this Act are subject to 25 TAC Chapter 37, regarding reporting hearing screening or audiologic outcomes to the Department of State Health Services (DSHS) through the designated electronic tracking system and 40 TAC Chapter 108 [§108.9], regarding referral of children under the age of three years to Early Childhood Intervention (ECI) [within two days of identification].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000504

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER U. FITTING AND DISPENSING OF HEARING INSTRUMENTS

16 TAC §111.200

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.200.Registration of Audiologists and Interns in Audiology to Fit and Dispense Hearing Instruments.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000511

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


16 TAC §111.201

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.201.General Practice Requirements of Audiologists and Interns in Audiology Who Fit and Dispense Hearing Instruments.

In accordance with the Act, a licensed audiologist or licensed intern in audiology, who fits and dispenses [registered to fit and dispense] hearing instruments, shall:

(1) (No change.)

(2) insure that all equipment used by the licensee within the licensee's [his or her] scope of practice is [shall be] calibrated in [to insure] compliance with the American National Standards Institute (ANSI), S3.6, 1989, Specification for Audiometers, or S3.6, 1996, Specification for Audiometers;

(3) receive a written statement before selling a hearing instrument that is signed by a licensed physician preferably one who specializes in diseases of the ear and states that the client's hearing loss has been medically evaluated during the preceding six-month period and that the client may be a candidate for a hearing instrument. If the client is age 18 or over, the [registered] audiologist or intern in audiology may inform the client that the medical evaluation requirement may be waived as long as the [registered] audiologist or intern in audiology:

(A) - (B) (No change.)

(C) gives the client an opportunity to sign this statement: "I have been advised by (the name of the individual dispensing the hearing instrument) that the Food and Drug Administration has determined that my best health interest would be served if I had a medical evaluation by a licensed physician (preferably a physician who specializes in diseases of the ear) before purchasing a hearing instrument. I do not wish medical evaluation before purchasing a hearing instrument;" [and]

(4) verify appropriate fit of the hearing instrument(s), which may include real ear measures, functional gain measures, or other professionally accepted measures; and

(5) use a written contract that contains the department's name, mailing address, telephone number, and Internet website address, when providing services in this state.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000505

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER V. TELEHEALTH

16 TAC §111.212

The proposed rules are proposed under Texas Occupations Code, Chapters 51, 112, and 401, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, and 401, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§111.212.Requirements for the Use of Telehealth by Speech-Language Pathologists.

(a) - (d) (No change.)

(e) A provider shall only utilize technology that the provider is [which they are] competent to use as part of the provider's [their] telehealth services.

(f) - (i) (No change.)

(j) A provider shall be aware of the client's or consultant's [client or consultant] level of comfort with the technology being used as part of the telehealth services. The provider shall [and] adjust the provider's [their] practice to maximize the client's or consultant's [client or consultant] level of comfort.

(k) - (p) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000506

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


CHAPTER 112. HEARING INSTRUMENT FITTERS AND DISPENSERS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 112, Subchapter B, §112.13; Subchapter C, §§112.23 - 112.26; Subchapter D, §§112.30, 112.32, and 112.33; Subchapter E, §112.40 and §112.42; Subchapter F, §112.52 and §112.53; Subchapter G, §112.60 and §112.61; Subchapter H, §112.71; Subchapter J, §112.91 and §112.98; Subchapter L, §112.110; and Subchapter M, §112.120; proposes new rules at Subchapter C, §112.21 and §112.22; and Subchapter M, §§112.121 - 112.125; and proposes the repeal of existing rules at Subchapter C, §112.21 and §112.22; and Subchapter N, §§112.130 - 112.132 and 112.134, regarding the Hearing Instrument Fitters and Dispensers Program. These proposed changes are referred to as "proposed rules."

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. The proposed rules are necessary to implement bills from the 86th Legislature, Regular Session (2019); clarify the submission of surety bonds or other financial security to the Department; address the permit extension requirements; and make terminology and other clean-up changes.

Bill Implementation Changes

The proposed rules are necessary to implement House Bill (HB) 1899, HB 2059, HB 2699, and HB 2847 (Article 7, §§7.003, 7.004, and 7.008), 86th Legislature, Regular Session (2019).

HB 1899 requires automatic license denial or revocation for a person who is convicted of or placed on deferred adjudication community supervision for certain crimes or who is required to register as a sex offender. The new statutory provisions under Texas Occupations Code, Chapter 108, Subchapter B, apply to certain health care professionals, including hearing instrument fitters and dispensers. The proposed rules add provisions providing notice of these new requirements.

HB 2059 requires certain health care practitioners to complete a human trafficking prevention training course approved by the Health and Human Services Commission as a condition for license renewal. Hearing instrument fitters and dispensers are affected by this bill. The proposed rules implement HB 2059 and the new statutory provisions under Texas Occupations Code, Chapter 116 by requiring licensed hearing instrument fitters and dispensers to take the training course for each license renewal on or after September 1, 2020.

HB 2699 revises and updates the license examination provisions under Texas Occupations Code, Chapter 402. The proposed rules make the necessary changes, which are primarily found in the Examinations subchapter.

HB 2847 is an omnibus bill that affects multiple programs. Article 7 of the bill applies to multiple programs, including the Hearing Instrument Fitters and Dispensers program. The proposed rules implement Article 7, §§7.003, 7.004, and 7.008 by providing notice to licensees regarding the new complaint-related provisions.

Surety Bond and Other Financial Security Changes

The proposed rules are necessary to clarify the requirements of submitting a surety bond or other financial security to the Department. The current rules require a sole proprietor, partnership, corporation, or other legal entity ("business entity") to submit a surety bond or other acceptable form of financial security in the prescribed amount to the Department. As required by statute, this financial security covers the business entity's actions and the actions of the license holders it employs. HB 4007, 85th Legislature, Regular Session (2017) removed the requirement for the owners, partners, or chief executive officers of these business entities to be licensed hearing instrument fitters and dispensers, but the business entities are still required to submit the financial security. The proposed rules clarify how a business entity submits the financial security for itself and the license holders it employs. The proposed rules also specify the times when the business entity is required to submit the financial security to the Department.

The proposed rules also require submission of a surety bond or other financial security at the first license renewal on or after September 1, 2020. This is a one-time requirement; however, when this program was transferred to the Department pursuant to SB 202, 84th Legislature, Regular Session (2015), the applicable business entities did not submit new financial security. The Department has updated the surety bond form, including having the surety bond payable to the Department, not to the former licensing board. This one-time requirement will ensure that the Department has updated financial security on file for all the applicable business entities and the license holders they employ.

Permit Extension Changes

The proposed rules are necessary to address the timing requirements for requesting a permit extension for apprentice permits and temporary training permits. The proposed rules specify the timing for submitting an extension request if the person will not or does not complete the permit requirements during the term of the permit. The proposed rules also explain the ramifications of not requesting an extension within the grace period.

Terminology and Other Clean-up Changes.

The proposed rules are necessary to make terminology and other clean-up changes to the rules. These changes include: replacing existing language with gender neutral language; removing unnecessary provisions; updating terminology; inserting the standardized criminal history background check language and updating the provision regarding fingerprints; and consolidating the complaint and enforcement provisions into one subchapter.

The proposed rules were presented at the Hearing Instrument Fitters and Dispensers Advisory Board (Advisory Board) meeting on January 22, 2020. There was less than a quorum of members present for the discussion, so the Advisory Board was not able to make a recommendation regarding the proposed rules. The Department is publishing the proposed rules as presented without the Advisory Board's recommendation.

SECTION-BY-SECTION SUMMARY

The proposed rules amend Subchapter B. Hearing Instrument Fitters and Dispensers Advisory Board.

The proposed rules amend §112.13, Officers. The proposed rules update the terminology in subsection (b) to use gender neutral language. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter C. Examinations.

The proposed rules add new §112.21, Examination Contents and Test Administration. This new section was former §112.22, Examination Tests and Contents. The order of §112.21 and §112.22 has been switched due to the terminology changes regarding "examination" and "test" in HB 2699. The revised order of the rules improves the flow and readability of the provisions in this subchapter. The title of the section has been changed to reflect the contents of the section. The proposed rules also update the references in subsections (a) and (b) (former §112.22(a) and (b)) from "examination" to "test" to implement HB 2699. (Bill Implementation Changes)

In addition, the proposed rules amend subsection (b)(1) (former §112.22(b)(1)) to remove the reference to the specific entity administering the written test and replace it with a reference to the department's designee. The change makes the provisions in subsection (b) consistent for all three tests, and it is consistent with some of the Department's other programs where an exam is administered. The change also allows flexibility in what entity administers the written test. (Terminology and Other Clean-up Changes)

The proposed rules repeal existing §112.21, Examination Qualifications. The proposed rules repeal this section and relocate the provisions to new §112.22. (Bill Implementation Changes)

The proposed rules add new §112.22, Examination Qualification Process. This new section was former §112.21, Examination Qualifications. The order of §112.21 and §112.22 has been switched due to the terminology changes regarding "examination" and "test" in HB 2699. The revised order of the rules improves the flow and readability of the provisions in this subchapter. The title of the section has been changed to reflect the contents of the section. The proposed rules also update the references in subsections (a), (b), (c), and (d) (former §112.21(a), (b), (c), and (e)) from "examination" to "test" to implement HB 2699. (Bill Implementation Changes)

The proposed rules under new §112.22 do not include former §112.21(d) regarding moral turpitude. This provision was repealed by HB 2699, Section 6, former Texas Occupations Code §402.203(c). (Bill Implementation Changes) The proposed rules also do not include former §112.21(f). This provision was out of place in this section, and it was not applicable to all three tests. (Terminology and Other Clean-up Changes)

The proposed rules repeal existing §112.22, Examination Tests and Contents. The proposed rules repeal this section and relocate the provisions to new §112.21. (Bill Implementation Changes)

The proposed rules amend §112.23, Examination and Test Results. The proposed rules change the references from "examination" to "test" as appropriate; remove the passing score of 70 percent or greater; and eliminate references to "scores" to implement HB 2699. The proposed rules separate subsection (b) into subsections (b) and (c) for clarity. The title of this section also has been updated. (Bill Implementation Changes)

The proposed rules amend §112.24, Failure of Examination or Test. The proposed rules amend §112.24 to implement HB 2699, Section 3, Texas Occupations Code §402.205(c) and (d). The proposed rules use subsections to address separate concepts. The proposed rules also update the title of this section. (Bill Implementation Changes)

The proposed rules amend §112.25, Practical Test Proctors. The proposed rules change the references from "examination" to "test" to implement HB 2699, Section 1, Texas Occupations Code §402.104(a) and (d). The proposed rules also update the title of the section. (Bill Implementation Changes) The proposed rules also make clean-up changes to subsection (b). (Terminology and Other Clean-up Changes)

The proposed rules amend §112.26, Jurisprudence Test. The proposed rules change the references from "examination" to "test" to implement HB 2699. The proposed rules also update the title of this section. (Bill Implementation Changes) The proposed rules also make terminology and clean-up changes to this section. (Terminology and Clean-up Changes)

The proposed rules amend Subchapter D. Hearing Instrument Fitter and Dispenser License.

The proposed rules amend §112.30, Hearing Instrument Fitter and Dispenser License--Application and Eligibility Requirements. The proposed rules amend subsection (d) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules under §112.30 add new subsection (e) to clarify the requirements of submitting a surety bond or other financial security. The current financial security requirements are located under §112.60, and they require a sole proprietor, partnership, corporation, or other legal entity ("business entity") to submit a surety bond or other acceptable form of financial security to the Department. As required by statute, the financial security covers the business entity's actions and the actions of the license holders it employs.

The proposed rules under subsection (e) explain how a business entity files the surety bond or other financial security for itself and its employees who are applying for a license. The proposed rules provide that the surety bond or financial security is provided by the business entity to the license applicant, who will file the surety bond or financial security with the license application. In the alternative, the business entity may file the surety bond or financial security directly with the Department. A new form will be created for the business entity to identify the employee/license applicant who is covered by the surety bond or financial security. (Surety Bond Clarification Changes)

The proposed rules under §112.30 add new subsection (g) to implement HB 1899, Section 8. New Texas Occupations Code §108.052 requires denial of an application from a person who is convicted of or placed on deferred adjudication community supervision for certain crimes or who is required to register as a sex offender. (Bill Implementation Changes)

The proposed rules amend §112.32, Hearing Instrument Fitter and Dispenser License--License Term; Renewals. The proposed rules amend subsection (d) to insert the standardized criminal history background check language. The proposed rules also update the provision on whether updated fingerprints will be required at renewal. The proposed rules also replace "licensee" with "license holder" for consistency purposes. (Terminology and Other Clean-up Changes)

The proposed rules under §112.32 add new subsection (e) to require submission of a surety bond or other financial security at the first license renewal on or after September 1, 2020. This is a one-time requirement; however, when this program was transferred to the Department pursuant to SB 202, 84th Legislature, Regular Session (2015), the applicable business entities did not submit new financial security. The Department has updated the surety bond form, including having the surety bond payable to the Department, not to the former licensing board. This one-time requirement will ensure that the Department has updated financial security on file for all the applicable business entities and the license holders they employ.

The proposed rules under subsection (e) explain how a business entity files the surety bond or other financial security for itself and its employees who are renewing their licenses. The proposed rules provide that the surety bond is provided by the business entity to the license holder, who will file the surety bond with the license renewal application. In the alternative, the business entity may file the surety bond or financial security directly with the Department. A new form will be created for the business entity to identify the employee/license holder who is covered by the surety bond or financial security. (Surety Bond Clarification Changes)

The proposed rules under §112.32 also add new subsection (f) to implement HB 2059 regarding the required human trafficking prevention training. (Bill Implementation Changes)

The proposed rules also consolidate current subsections (e) and (f) into one subsection and re-letter it as subsection (g). The text of subsections (e) and (f) has been condensed and replaced with cross-references to the statutory provisions. (Terminology and Other Clean-up Changes)

The proposed rules amend §112.33, Application by License Holder From Another State. The proposed rules change the reference in subsection (d) from "examination" to "test" to implement HB 2699. (Bill Implementation Changes) The proposed rules amend subsection (e) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules under §112.33 also add subsection (g) to implement HB 1899, Section 8. New Texas Occupations Code §108.052 requires denial of an application from a person who is convicted of or placed on deferred adjudication community supervision for certain crimes or who is required to register as a sex offender. (Bill Implementation Changes)

The proposed rules under §112.33 add new subsection (h) to clarify the requirements of submitting a surety bond or other financial security. The current financial security requirements are located under §112.60, and they require a sole proprietor, partnership, corporation, or other legal entity ("business entity") to submit a surety bond or other acceptable form of financial security to the Department. As required by statute, the financial security covers the business entity's actions and the actions of the license holders it employs.

The proposed rules under subsection (h) explain how a business entity files the surety bond or other financial security for itself and its employees who are applying for a license. The proposed rules provide that the surety bond or financial security is provided by the business entity to the license applicant, who will file the surety bond or financial security with the license application. In the alternative, the business entity may file the surety bond or financial security directly with the Department. A new form will be created for the business entity to identify the employee/license applicant who is covered by the surety bond or financial security. (Surety Bond Clarification Changes)

The proposed rules under §112.33 also amend subsections (i) and (j) (former subsections (g) and (h)) to implement HB 2699, Section 5, Texas Occupations Code §§402.209(e) and (f). (Bill Implementation Changes)

The proposed rules amend Subchapter E. Apprentice Permit.

The proposed rules amend §112.40, Apprentice Permit--Application and Eligibility Requirements. The proposed rules change the references in subsection (c) from "examination" to "test" to implement HB 2699. (Bill Implementation Changes) The proposed rules also amend subsection (d) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules amend §112.42, Apprentice Permit--Permit Term; Extension. The proposed rules amend subsection (b) to specify the timing of when a person must submit the apprentice permit extension request. The proposed rules also add a new subsection (e) to explain the ramifications of not requesting an extension within the 90-day grace period. (Permit Extension Changes) The proposed rules also amend subsection (c) to insert the standardized criminal history background check language. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter F. Temporary Training Permit.

The proposed rules amend §112.52, Temporary Training Permit--Permit Term; Extension. The proposed rules amend subsection (b) to specify the timing of when a person must submit the temporary training permit extension request. The proposed rules also add a new subsection (e) to explain the ramifications of not requesting an extension within the 90-day grace period. (Permit Extension Changes)

The proposed rules amend §112.53, Temporary Training Permit--Supervision and Temporary Training Requirements. The proposed rules update the terminology in subsection (c) to use gender neutral language. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter G. Financial Security Requirements.

The proposed rules amend §112.60, Filing Surety Bond or Other Form of Financial Security. The proposed rules clarify the requirements of submitting a surety bond or other financial security to the Department. The current rules require a sole proprietor, partnership, corporation, or other legal entity ("business entity") to submit a surety bond or other acceptable form of financial security in the prescribed amount to the Department. As required by statute, this financial security covers the business entity's actions and the actions of the license holders it employs. HB 4007, 85th Legislature, Regular Session (2017) removed the requirement for the owners, partners, or chief executive officers of these business entities to be licensed hearing instrument fitters and dispensers, but the business entities are still required to submit the financial security. The proposed rules clarify how a business entity submits the financial security for itself and the license holders it employs. (Surety Bond Clarification Changes)

The proposed rules under §112.60 add a new subsection (b) to clearly state in the rules that the financial security covers the actions, conduct, or liability of the business entity and the license holders it employs as required by statute. The proposed rules add a new subsection (d) that identifies the three times when a business entity needs to file the financial security with the Department and includes cross-references to the applicable sections. The proposed rules amend re-lettered subsection (e) (former subsection (c)) to clarify that the referenced "license" is the employee's license. The proposed rules also make clean-up changes to the financial security references in re-lettered subsections (e) and (f) (former subsections (c) and (d)) for consistency purposes in this section. (Surety Bond Clarification Changes)

The proposed rules amend §112.61, Recovery on Surety Bond or Other Form of Financial Security. The proposed rules remove the statutory cross-reference and include the text from Texas Occupations Code §402.405 in order to clarify in the rules that the financial security covers the actions of the business entity and the license holders employed by the business entity. (Surety Bond Clarification Changes)

The proposed rules amend Subchapter H. Continuing Education Requirements.

The proposed rules amend §112.71, Continuing Education--Records and Audits. The proposed rules update the terminology in subsections (a) and (c) to use gender neutral language. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter J. Responsibilities of the Licensee.

The proposed rules amend §112.91, Change of Name, Address, or Other Information. The proposed rules change the reference under subsection (a) from "licensee," which is defined to include license holders and permit holders, to "license holder or permit holder." This terminology change is necessary for clarity purposes due to the addition of subsection (b), which only applies to license holders. (Terminology and Other Clean-up Changes)

The proposed rules add a new requirement under subsection (b) for a license holder who changes employers to submit a copy of the surety bond or other form of financial security from the license holder's new employer. In the alternative, the new employer may submit the financial security directly to the department. A new form will be developed to implement this requirement. (Surety Bond Clarification Changes)

The proposed rules amend §112.98, Code of Ethics. The proposed rules update the terminology in subsections (c) and (d) to use gender neutral language. The proposed rules also make a clean-up change to subsection (d). (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter L. Fees.

The proposed rules amend §112.110, Fees. The proposed rules change the references from "examination" to "test" in subsection (e) to implement HB 2699. (Bill Implementation Changes)

The proposed rules amend Subchapter M. Complaints.

The proposed rules amend the title of Subchapter M to read "Complaints and Enforcement Provisions." The proposed rules combine Subchapters M and N into one subchapter. The enforcement sections under Subchapter N are being relocated to Subchapter M. (Terminology and Other Clean-up Changes)

The proposed rules amend §112.120, Complaints. The proposed rules update the title of §112.120 to reflect the expanded scope of the section. The proposed rules add new subsection (b) as a notice to licensees and to the public regarding qualified persons, including licensees and advisory board members, assisting the department in reviewing and investigating complaints and being immune from liability related to those activities. (HB 2847, §7.003)

The proposed rules under §112.120 also add new subsection (c) as a notice to licensees and to the public regarding the confidentiality of complaint and disciplinary information. Former Texas Occupations Code §402.154 addressed these issues for hearing instrument fitters and dispensers. HB 2847, Article 7, §7.008, repealed §402.154 and similar confidentiality provisions in other health professions statutes. HB 2847, Article 7, §7.004, added a new standardized confidentiality provision in Texas Occupations Code, Chapter 51 that is applicable to certain specified health professions, including hearing instrument fitters and dispensers. (HB 2847, §7.004). (Bill Implementation Changes)

The proposed rules add new §112.121, Administrative Penalties and Sanctions. This new section was former §112.130. There are no proposed changes to the text. (Terminology and Other Clean-up Changes)

The proposed rules add new §112.122. Enforcement Authority. This new section was former §112.131. There are no proposed changes to the text. (Terminology and Other Clean-up Changes)

The proposed rules add new §112.123, Refund for Hearing Instrument. This new section was former §112.132. There are no proposed changes to the text. (Terminology and Other Clean-up Changes)

The proposed rules add new §112.124, Surrender of a License or Permit. This new section was former §112.134. The proposed rules also update the terminology in subsection (a) and (b) (former §112.134(a) and (b)) to use gender neutral language. (Terminology and Other Clean-up Changes) The proposed rules also add a new subsection (d) to clarify that §112.124 (former §112.134) does not apply to licenses and permits that are subject to the new §112.125, which implements HB 1899. (Bill Implementation Changes)

The proposed rules add new §112.125, Automatic Denials and Revocations. The proposed rules add a new §112.125 to implement HB 1899, Section 8, and specifically new Texas Occupations Code §108.052 and §108.053. These provisions apply to licenses and permits. (Bill Implementation Changes)

The proposed rules repeal Subchapter N. Enforcement Provisions.

Subchapter N is being eliminated, and the complaints and enforcement provisions are being combined under Subchapter M. (Terminology and Other Clean-up Changes)

The proposed rules repeal §112.130, Administrative Penalties and Sanctions. This section has been relocated to new §112.121. (Terminology and Other Clean-up Changes)

The proposed rules repeal §112.131, Enforcement Authority. This section has been relocated to new §112.122. (Terminology and Other Clean-up Changes)

The proposed rules repeal §112.132, Refund for Hearing Instrument. This section has been relocated to new §112.123. (Terminology and Other Clean-up Changes)

The proposed rules repeal §112.134, Surrender of a License or Permit. This section has been relocated to new §112.124. (Terminology and Other Clean-up Changes)

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state government as a result of enforcing or administering the proposed rules. It is estimated that the costs to administer or enforce the proposed rule changes will be minimal, if any, to the State. The activities required to implement the proposed rule changes are one-time program administration tasks that are routine in nature, such as updating licensing records, modifying or revising forms, publications, or website information. The proposed rules do not impact program costs. Many of the proposed rule changes are clean-up amendments intended to align the rules with current practice and require no implementation. There is no anticipated reduction in costs to the State. A reduction in costs only occurs when enough duties and functions are removed from the Department by the rules to result in a reduction. The changes made by the rules do not reduce the Department's workload, or result in the need for less personnel or resources.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to local government as a result of enforcing or administering the proposed rules. Local governments are not responsible for administering the state regulation of hearing instrument fitters and dispensers under Texas Occupations Code, Chapter 402.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there may be a loss in revenue to the state government as a result of enforcing or administering the proposed rules, however, the loss in revenue would be minimal and is not considered significant. Currently, a temporary training permit holder or an apprentice permit holder may extend their permit for a one-year period by paying a $25 extension fee if the extension is requested before the permit expires. If an extension is not requested before the permit expires, a temporary training permit holder must apply for a new permit and pay $205, and an apprentice permit holder must apply for new temporary training permit to be eligible to apply for a new apprentice permit. The total cost for an apprentice permit holder who does not request an extension in time is $410. The proposed rules create a 90-day period following the expiration of the permit which gives the permit holder an extra period of time to request an extension and pay only a $25 fee, instead of having to reapply for a permit or permits at a cost of $205 or $410. This change could result in a loss in revenue. The need to extend a permit is discretionary, and the number of permit holders who will choose to extend the license is indeterminable. Currently, only one or two permit holders on average per year fail to request an extension before their permit's expiration. However, it varies which type of permit holder needs an extension, so no definitive revenue loss can be estimated, and it is also unknown if those one or two permit holders on average would request the extension before the 90 days elapse and benefit from the smaller fee. Although no revenue loss can be estimated, the loss in revenue would be minimal and is not considered significant.

Mr. Couvillon also has determined that there is no anticipated increase in State revenue as a result of enforcing or administering the proposed rules. An increase in revenue only results when new or increased fees are paid to the agency. No new fees or increased fees have been proposed. HB 2059 sets out the requirement for licensees to complete the human trafficking prevention training and requires the Health and Human Services Commission (HHSC) to provide at least one free human trafficking prevention training option. If a licensee chooses to pay a fee for the required training, the cost is discretionary and the fee would be paid to the training provider and not to the Department.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the local government as a result of enforcing or administering the proposed rules. Fees associated with the program are remitted to the state and not to local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Texas Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be the implementation of HB 1899, HB 2059, HB 2699, and HB 2847 for more effective regulation of the Hearing Instrument Fitters and Dispensers Program. In implementing these bills, the rules will align with the updated statutes and will notify licensees and the public regarding requirements affecting this program. In implementing HB 2059, the HHSC-approved human trafficking prevention training courses will educate and bring awareness to licensees on how to identify the signs of human trafficking, which is a benefit to the public. In implementing HB 2847, individuals who assist the agency with complaints and investigations will be immune from liability, which may increase availability of subject matter experts and could lead to a faster resolution of complaints and investigations.

There is also a public benefit by the Department receiving updated financial security from the applicable business entities and the license holders they employ. The financial security may be used in cases where a person is harmed by an entity engaged in the fitting and dispensing of hearing instruments or by a license holder employed by that entity as prescribed by statute and rule. Having updated financial security helps ensure that the Department will be able to file a claim against the financial security on behalf of the person harmed if the situation arises.

There will also be a benefit to permit holders for each year of the first five-year period the proposed rules are in effect. The creation of the 90-day period to apply for an extension following the expiration of a temporary training permit or an apprentice permit will allow a permit holder to obtain an extension for a $25 fee rather than having to obtain new permits at a cost of $205 or $410. The creation of the 90-day period also will save a permit holder, who does not request an extension before the expiration of the permit, many hours repeating work already completed. This change will allow a permit holder to obtain a hearing instrument fitter and dispenser license sooner and begin earning a living.

The public and the licensees will also benefit from the clean-up changes made to the rules throughout the chapter. These changes will result in rules that align with current agency practice, conform to the enabling statute, function more efficiently and effectively, and are more user-friendly. An effective regulatory program for hearing instrument fitters and dispensers protects the health, safety, and welfare of the public.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. Regarding the human trafficking prevention training, HB 2059 sets out the requirement for licensees to complete the training, and it requires the Health and Human Services Commission (HHSC) to approve these training courses and to provide at least one free training course option. If a licensee chooses to pay a fee for the required training, that cost would be discretionary on the part of the licensee and would not be a result of the Department's proposed rules. Additionally, any cost to attend a human trafficking prevention training course would be established by the training provider and therefore cannot be estimated by the Department. Any costs associated with the human trafficking prevention training are a result of the new statute, Texas Occupations Code, Chapter 116, as added by HB 2059. There are no costs imposed by the Department's proposed rules.

Regarding the financial security requirements, the proposed rules would require a sole proprietor, partnership, corporation, or other legal entity engaged in the fitting and dispensing of hearing instruments to file financial security with the Department for an employee's first license renewal on or after September 1, 2020. This is a one-time requirement following the transfer of the program to the Department. This requirement will ensure that the Department has updated financial security from all of the applicable business entities and the license holders they employ. These business entities should be able to provide an updated surety bond for little or no cost to the entity. A surety company might charge a small fee for a copy of a surety bond, but any such fees would vary and therefore cannot be calculated.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Texas Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Texas Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do require an increase or decrease in fees paid to the agency. The proposed rules create a 90-day period following the expiration of a temporary training permit or apprentice permit to allow a holder of one of those permits to request an extension and pay the $25 extension fee, rather than having to apply for a new temporary training permit or a new apprentice permit as well as a new temporary training permit. Instead of paying $205 or $410 in fees, the permit holder would only have to pay a $25 extension request fee, which would result in a decrease in fees paid to the agency.

5. The proposed rules do create a new regulation. The proposed rules implement HB 2059 and will create a new regulation (rule) requiring a licensed hearing instrument fitter and dispenser to complete a HHSC-approved human trafficking prevention training course as a condition of license renewal. This requirement becomes effective September 1, 2020.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules amend the existing regulations (rules) to implement changes due to HB 1899, HB 2059, HB 2699, and HB 2847 and to make clean-up changes. The proposed rules also amend the existing regulations (rules) to require submission of an updated surety bond at the licensee's first renewal on or after September 1, 2020.

7. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Dalma Sotero, Assistant General Counsel, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER B. HEARING INSTRUMENT FITTERS AND DISPENSERS ADVISORY BOARD

16 TAC §112.13

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.13.Officers.

(a) (No change.)

(b) The presiding officer shall preside at all meetings at which the presiding officer [he or she] is in attendance.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000521

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER C. EXAMINATIONS

16 TAC §112.21, §112.22

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.21.Examination Qualifications.

§112.22.Examination Tests and Contents.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000524

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


16 TAC §§112.21 - 112.26

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.21.Examination Contents and Test Administration.

(a) The examination required under the Act shall consist of a written test, a practical test, and a jurisprudence test.

(b) The department shall administer or arrange for the administration of the examination.

(1) The written test is the International Licensing Examination for Hearing Instrument Dispenser, administered by the department's designee.

(2) The practical test is developed by the department and administered by the department's designee.

(3) The jurisprudence test is developed by the department and administered by the department's designee.

(c) The examination under subsection (a), will test the following areas as they relate to the fitting and dispensing of hearing instruments:

(1) basic physics of sound;

(2) structure and function of hearing instruments;

(3) fitting of hearing instruments;

(4) pure tone audiometry, including air conduction testing and bone conduction testing;

(5) live voice and recorded voice speech audiometry;

(6) masking when indicated for air conduction, bone conduction, and speech;

(7) recording and evaluation of audiograms and speech audiometry to determine the candidacy for a hearing instrument;

(8) selection and adaption of hearing instruments, testing of hearing instruments, and verification of aided hearing instrument performance;

(9) taking of earmold impressions;

(10) verification of hearing instrument fitting and functional gain measurements using a calibrated system;

(11) anatomy and physiology of the ear;

(12) counseling and aural rehabilitation of an individual with a hearing impairment for the purpose of fitting and dispensing hearing instruments;

(13) use of an otoscope for the visual observation of the entire ear canal; and

(14) laws, rules, and regulations of this state and the United States.

(d) The examination may not test knowledge of the diagnosis or treatment of any disease of or injury to the human body.

§112.22.Examination Qualification Process.

(a) An applicant must qualify to take the written test and the practical test. The applicant must also take the jurisprudence test as described under §112.26, but the applicant does not need to qualify to take the jurisprudence test.

(b) The department will review a temporary training permit holder's documentation as prescribed under §112.53 to determine whether the applicant qualifies to take the written and practical tests.

(c) The department will review an out of state license holder's application and other submitted documentation as prescribed under §112.33 to determine whether the applicant qualifies to take the practical test.

(d) The department or department's designee will notify the applicant who qualifies to take the examination.

§112.23.Examination and Test [Scores and] Results.

(a) The applicant must pass [each part of] the required examination consisting of the [(]written, practical, and jurisprudence tests[) with a score of 70 percent or greater].

(b) The department or the department's designee will notify the applicant in writing regarding the applicant's test [examination scores or] results for the written and practical tests [examinations].

(c) The department's designee will provide a certificate of completion to the applicant upon passage of the jurisprudence test [examination].

§112.24.Failure of Examination or Test.

(a) An applicant who failed an examination or test may retake the examination or test.

(b) An applicant who failed a practical test may be retested only on those portions of the practical test that the applicant failed.

(c) An applicant must pay a new fee to retake the examination or test.

(d) An applicant must hold a current temporary training permit or an out-of-state license under §112.33 in order to retake the examination or test. [An applicant who fails the examination may retake the failed portion or portions of the examination after payment of an additional examination fee. An applicant must hold a current temporary training permit or an out-of-state license under §112.33 in order to retake the failed portion or portions of the examination.]

§112.25.Practical Test [Examination] Proctors.

(a) The practical test [examination] must be administered by one or more qualified proctors selected and assigned by the department.

(b) Qualifications for test [Examination] Proctor.

(1) (No change.)

(2) A proctor must have held the license for at least two years prior to the practical test [examination] date.

(3) A proctor must have observed at least three full practical tests [examinations] and meet any other proctor training requirements as prescribed by the department [Department] or its designee prior to serving as a proctor.

(4) Disciplinary actions or other actions that may disqualify a license holder from serving as a proctor are:

(A) - (B) (No change.)

(C) an administrative penalty or reprimand under this chapter within three years prior to the test [examination] date. §112.26.Jurisprudence Test [Examination ].

(a) To fulfill the requirements under Texas Occupations Code §402.204(b)(14), an applicant must complete [pass ] the jurisprudence test [examination] prescribed by the department.

(b) The jurisprudence test [examination] is separate from the written and practical tests [examinations under §112.22]. The jurisprudence test covers [examination tests the applicant's knowledge of] the laws, rules, and regulations of Texas and of the United States relating to the fitting and dispensing of hearing instruments.

(c) The applicant must register online and pay the jurisprudence test [examination] fee to the department's designee [third-party provider]. The applicant does not need to qualify through the department to take the jurisprudence test [examination].

(d) The applicant must successfully complete the jurisprudence test [Jurisprudence Examination] and submit a certificate of completion prior to receiving a hearing instrument fitter and dispenser license or an apprentice permit.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000525

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER D. HEARING INSTRUMENT FITTER AND DISPENSER LICENSE

16 TAC §§112.30, 112.32, 112.33

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.30.Hearing Instrument Fitter and Dispenser License--Application and Eligibility Requirements.

(a) - (c) (No change.)

(d) An applicant for a hearing instrument fitter and dispenser license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety or its designee, in a manner prescribed by the Department of Public Safety, for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check pursuant to Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(e) Surety Bond or Other Acceptable Form of Financial Security.

(1) The applicant's employer, who is subject to §112.60, must provide the applicant with a surety bond or other acceptable form of financial security. The applicant must submit the surety bond or other financial security to the department with the license application.

(2) As an alternative to subsection (e)(1), the applicant's employer, who is subject to §112.60, may submit the surety bond or other acceptable form of financial security directly to the department on behalf of itself and the applicant. The employer must submit the prescribed form that identifies the applicant who is covered under the surety bond or other financial security.

(3) The surety bond or other acceptable form of financial security must be received on or before the date of issuance of the applicant's license.

(f) [(e)] The commission or executive director may deny an application based on the grounds for denial under Texas Occupations Code §402.501.

(g) The commission or department shall deny an application pursuant to Texas Occupations Code §108.052.

§112.32.Hearing Instrument Fitter and Dispenser License--License Term; Renewals.

(a) - (c) (No change.)

(d) A license holder [licensee] must successfully pass a criminal history background check pursuant to Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines in order to renew the license. The department will notify the license holder if the person needs[; however, the licensee does not need] to submit new fingerprints.

(e) Surety Bond or Other Acceptable Form of Financial Security.

(1) For the first renewal on or after September 1, 2020, the license holder's employer, who is subject to §112.60, must provide the license holder with a surety bond or other acceptable form of financial security. The license holder must submit the surety bond or other financial security to the department with the license renewal application.

(2) As an alternative to subsection (e)(1), for the first renewal on or after September 1, 2020, the license holder's employer, who is subject to §112.60, may submit the surety bond or other acceptable form of financial security directly to the department on behalf of the employer and the license holder. The employer must submit the prescribed form that identifies the license holder who is covered under the surety bond or other financial security.

(3) The surety bond or other acceptable form of financial security must be received on or before the date of renewal of the license holder's license.

(f) For each license renewal on or after September 1, 2020, the license holder must complete the human trafficking prevention training required under Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(g) The commission or department shall renew the license of a license holder who has met all the requirements for renewal, except as provided under Texas Occupations Code §402.301 and §402.501.

[(e) The commission or department may deny the renewal of the license pursuant to Texas Occupations Code §402.501.]

[(f) Except as provided under subsection (e), a license that is not revoked or suspended shall be renewed provided that all other requirements are met.]

(h) [(g)] A person whose license has expired may renew the license in accordance with §60.31 and §60.83 of this title.

(i) [(h)] A person whose license has expired shall not practice the fitting and dispensing of hearing instruments.

(j) [(i)] The department shall issue a renewal card to a license holder who has met all the requirements for renewal. The license holder must display the renewal card in association with the license.

§112.33.Application by License Holder From Another State.

(a) - (c) (No change.)

(d) An applicant must submit the following requireddocumentation:

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

(3) written verification that:

(A) the requirements to obtain a license to fit and dispense hearing instruments in the state in which the applicant is licensed include passing the International Licensing Examination for Hearing Instrument Dispenser (ILE) written test [examination]; or

(B) (No change.)

(4) - (6) (No change.)

(e) An applicant for a hearing instrument fitter and dispenser license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety or its designee, in a manner prescribed by the Department of Public Safety, for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check pursuant to Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(f) (No change.)

(g) The commission or department shall deny an application pursuant to Texas Occupations Code §108.052.

(h) Surety Bond or Other Acceptable Form of Financial Security.

(1) The applicant's employer, who is subject to §112.60, must provide the applicant with a surety bond or other acceptable form of financial security. The applicant must submit the surety bond or other financial security to the department with the license application.

(2) As an alternative to subsection (h)(1), the applicant's employer, who is subject to §112.60, may submit the surety bond or other acceptable form of financial security directly to the department on behalf of the employer and the applicant. The employer must include the prescribed form that identifies the applicant who is covered under the surety bond or other financial security.

(3) The surety bond or other acceptable form of financial security must be received on or before the date of issuance of the applicant's license.

(i) [(g)] If the department approves an application, the applicant must take the practical test [examination] and the jurisprudence test [examination required under §112.22 and §112.26]. If the applicant meets the examination requirements [passes the examinations required under this section], the department shall issue to the applicant a hearing instrument fitter and dispenser license under this chapter.

(j) [(h)] The department may allow an applicant under this section who satisfies all application requirements other than the requirement under subsection (d)(3), to take all three tests that comprise [sections of] the examination required under Texas Occupations Code §402.202. If the applicant meets [passes] the examination requirements, the department shall issue to the applicant a hearing instrument fitter and dispenser license under this chapter.

(k) [(i)] The department may not issue a license under this section to an applicant who is a licensed audiologist in another state. The department shall inform the applicant of the licensing requirements of Chapter 401.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000528

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER E. APPRENTICE PERMIT

16 TAC §112.40, §112.42

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.40.Apprentice Permit--Application and Eligibility Requirements.

(a) - (b) (No change.)

(c) An applicant for an apprentice permit must:

(1) - (3) (No change.)

(4) pass the written and practical tests [all parts of the examination required under §112.22];

(5) submit a certificate of completion of the jurisprudence test [examination under §112.26]; and

(6) (No change.)

(d) An applicant for an apprentice permit must successfully pass a criminal history background check pursuant to Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

§112.42.Apprentice Permit--Permit Term; Extension.

(a) (No change.)

(b) To extend an apprentice permit, the apprentice permit holder must:

(1) submit an extension request on a department-approved form not later than 90 days after the expiration of the permit;

(2) - (3) (No change.)

(c) An apprentice permit holder must successfully pass a criminal history background check pursuant to Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines to extend the permit.

(d) (No change.)

(e) A person whose apprentice permit has expired has 90 days after the expiration date to request an extension from the department. After that date, the person must apply for a temporary training permit and must start over at the beginning of the temporary training permit process. The person must repeat and complete the temporary training permit requirements and the apprentice permit requirements under Occupations Code Chapter 402 and this chapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000530

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER F. TEMPORARY TRAINING PERMIT

16 TAC §112.52, §112.53

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.52.Temporary Training Permit--Permit Term; Extension.

(a) (No change.)

(b) To extend a temporary training permit, the temporary training permit holder must:

(1) submit an extension request on a department-approved form no later than 90 days after the expiration of the permit;

(2) - (3) (No change.)

(c) - (d) (No change.)

(e) A person whose permit has expired has 90 days after the expiration date to request an extension from the department. After that date, the person must apply for a new permit and must start over at the beginning of the temporary training permit process as prescribed under §112.50(e). This new permit will count as the person's second permit under §112.50(e).

(f) [(e)] A person who has been issued a second temporary training permit under §112.50 may extend the second temporary training permit once in accordance with this section.

§112.53.Temporary Training Permit--Supervision and Temporary Training Requirements.

(a) - (b) (No change.)

(c) A person must obtain a temporary training permit prior to beginning the supervision and must maintain a valid temporary training permit during the person's [his or her] supervised practicum experience.

(d) - (l) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000532

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER G. FINANCIAL SECURITY REQUIREMENTS

16 TAC §112.60, §112.61

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.60.Filing Surety Bond or Other Form of Financial Security.

(a) A sole proprietor, partnership, corporation, or other legal entity engaged in the fitting and dispensing of hearing instruments must file with the department financial security in a form provided by subsection (c) [(b)], in the amount of $10,000 and conditioned on the promise to pay all:

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

(b) The financial security covers the actions, conduct, or liability of the sole proprietor, partnership, corporation, or other legal entity and the license holders employed by that entity as prescribed under Occupations Code §402.405 and §112.61.

(c) [(b)] A sole proprietor, partnership, corporation, or other legal entity must file with the department one of the following acceptable forms of financial security in the amount required in subsection (a):

(1) - (4) (No change.)

(d) A sole proprietor, partnership, corporation, or other legal entity must file the financial security with the department at the following times and in the manner prescribed in the following sections:

(1) for an employee's initial license application as prescribed under §112.30 or §112.33;

(2) for an employee's first license renewal on or after September 1, 2020, as prescribed under §112.32; and

(3) for a new employee who provides notice of change in employment as prescribed under §112.91.

(e) [(c)] The [surety bond or other accepted form of] financial security must be received on or before the date of issuance of the employee's license.

(f) [(d)] A person to whom the Act does not apply pursuant to Texas Occupations Code §402.003 is not required to file financial security [a bond] under this section.

(g) [(e)] Financial security required under this section remains in effect until canceled by action of the surety, the principal, or the department. Notice of cancellation must be provided to the department no later than thirty (30) days prior to cancellation.

§112.61.Recovery on Surety Bond or Other Form of Financial Security.

(a) The purchaser of a hearing instrument may rescind the purchase and recover funds as provided by Texas Occupations Code §402.404 and §112.60 for: [§402.405.]

(1) a material misstatement of fact or misrepresentation by a license holder employed by an entity regarding the instrument or services to be provided by the license holder that was relied on by the purchaser or that induced the purchaser to purchase the instrument;

(2) the failure by the entity to provide the purchaser with an instrument or with fitting and dispensing services that conform to the specifications of the purchase agreement;

(3) the diagnosis of a medical condition unknown to the purchaser at the time of the purchase that precludes the purchaser's use of the instrument;

(4) the failure by the entity to remedy a significant material defect of the instrument within a reasonable time;

(5) the provision by the entity of fitting and dispensing services that are not in accordance with accepted industry practices; or

(6) the failure by a license holder employed by the entity to meet the standards of conduct prescribed by Occupations Code Chapter 402 or this chapter that adversely affects the transactions between the purchaser and the license holder or the entity.

(b) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000533

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER H. CONTINUING EDUCATION REQUIREMENTS

16 TAC §112.71

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.71.Continuing Education--Records and Audits.

(a) The department shall employ an audit system for continuing education reporting. The license holder shall be responsible for maintaining a record of the license holder's [his or her] continuing education experiences. The certificates, diplomas, or other documentation verifying earning of continuing education hours are not to be forwarded to the department at the time of renewal unless the license holder has been selected for audit.

(b) (No change.)

(c) The license holder shall be responsible for maintaining a record of the license holder's [his or her] continuing education experiences until the next renewal is completed.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000535

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER J. RESPONSIBILITIES OF THE LICENSEE

16 TAC §112.91, §112.98

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.91.Change of Name, Address, or Other Information.

(a) A license holder or permit holder [licensee] must notify the department in writing within thirty (30) days of any changes of name, address, telephone number, or employment.

(b) If a license holder changes employment, the financial security on file with the department must be updated within thirty (30) days of the license holder's change in employment. The updated financial security may be filed as follows:

(1) The license holder's new employer, who is subject to §112.60, must provide the license holder with a surety bond or other acceptable form of financial security. The license holder must submit the surety bond or other financial security to the department with the change in employment notice.

(2) As an alternative to subsection (b)(1), the license holder's new employer, who is subject to §112.60, may submit the surety bond or other acceptable form of financial security directly to the department on behalf of itself and the license holder. The new employer must submit the prescribed form that identifies the license holder who is covered under the surety bond or other financial security.

§112.98.Code of Ethics.

(a) - (b) (No change.)

(c) A license holder or permit holder shall:

(1) offer only those services that are within the person's [his or her] professional competency;

(2) - (6) (No change.)

(d) A license holder or permit holder shall not:

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

(3) misrepresent the person's [his or her] professional credentials or [and/or] qualifications;

(4) - (6) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000537

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER L. FEES

16 TAC §112.110

The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rule is also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rule.

§112.110.Fees.

(a) - (d) (No change.)

(e) The fees for the written test [examination ], the practical test [examination], and the jurisprudence test [examination] are set by and payable to the department's designees [designee].

(f) - (j) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000538

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER M. COMPLAINTS AND ENFORCEMENT PROVISIONS

16 TAC §§112.120 - 112.125

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.120.Complaints [Regarding Standard of Care].

(a) The commission has adopted rules related to handling complaints regarding standard of care pursuant to Texas Occupations Code §51.2031. These rules are located at 16 Texas Administrative Code Chapter 100.

(b) A qualified person may assist the department in the review and investigation of complaints and will be immune from liability related to these activities pursuant to Texas Occupations Code §51.252.

(c) The provisions regarding the confidentiality of complaint and disciplinary information are provided under Texas Occupations Code §51.254.

§112.121.Administrative Penalties and Sanctions.

If a person or entity violates any provision of Texas Occupations Code, Chapters 51 or 402, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 51 and 402, as applicable, and any associated rules.

§112.122.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapters 51 and 402 and any associated rules may be used to enforce Texas Occupations Code, Chapter 402 and this chapter.

§112.123.Refund for Hearing Instrument.

The commission or executive director may order a license holder to pay a refund to a consumer who returns a hearing instrument during the 30-day trial period described in the Act and in this chapter.

§112.124.Surrender of a License or Permit.

(a) Surrender by license holder or permit holder.

(1) A license holder or permit holder may at any time voluntarily offer to surrender the person's license or permit for any reason.

(2) If no complaint is pending, the executive director shall accept and void the surrendered license or permit immediately.

(b) Formal disciplinary action.

(1) When a license holder or permit holder has offered the surrender of the person's license or permit after a complaint has been filed, the executive director shall accept and void the surrendered license or permit immediately.

(2) When the executive director has accepted such a surrender, the surrender is deemed to be the result of a formal disciplinary action and an order accepting the surrender may be prepared.

(c) Reinstatement. A license or permit which has been surrendered may not be reinstated; however, a person may apply for a new license or permit in accordance with the Act and this chapter.

(d) This section does not apply to a license or permit that is subject to §112.125.

§112.125.Automatic Denials and Revocations.

(a) The department shall deny an application for a license or permit, and shall revoke a license or permit issued under Chapter 402, under the circumstances set forth in Texas Occupations Code, Chapter 108, Subchapter B.

(b) A person whose application for a license or permit has been denied, or whose license or permit has been revoked, pursuant to Texas Occupations Code, Chapter 108, Subchapter B, may reapply or seek reinstatement as provided by that subchapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000539

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


SUBCHAPTER N. ENFORCEMENT PROVISIONS

16 TAC §§112.130 - 112.132, 112.134

The repeals are proposed under Texas Occupations Code, Chapters 51 and 402, 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 repeals are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 116, and 402, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§112.130.Administrative Penalties and Sanctions.

§112.131.Enforcement Authority.

§112.132.Refund for Hearing Instrument.

§112.134.Surrender of a License or Permit.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000546

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306


CHAPTER 114. ORTHOTISTS AND PROSTHETISTS

16 TAC §114.40

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 114, §114.40, regarding the Orthotists and Prosthetists Program. These proposed changes are referred to as the "proposed rule."

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC, Chapter 114, implement Texas Occupations Code, Chapter 605.

The proposed rule is necessary to implement the requirements of House Bill (HB) 2059 of the 86th Texas Legislature, Regular Session (2019), and Texas Occupations Code Chapter 116, requiring human trafficking prevention training for health care practitioners prior to the renewal of a license. The proposed rule also amends the rule section's definition of "licensee" to reflect the definition used throughout Chapter 114 for purposes of clarity and consistency.

The proposed rule was presented to and discussed by the Othothists and Prosthetists Advisory Board at its meeting on January 13, 2020. The Advisory Board did not make any changes to the proposed rule. The Advisory Board voted and recommended that the proposed rule be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rule amends §114.40, Renewal, by clarifying the rule section's definition of "licensee" in subsection (a) to reflect the definition used throughout Chapter 114. Additionally, the proposed rule amends the section to include new subsection (c)(7), a requirement for human trafficking prevention training prior to license renewal as required by HB 2059 and Texas Occupations Code §116.003.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rule.

Mr. Couvillon has determined that for each year of the first five years the proposed rule is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rule.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rule will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be increasing awareness and assisting prevention of human trafficking in Texas.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule. The requirements of HB 2059 stipulate that at least one human trafficking prevention course will be free, and thus persons subject to the rule will not be required to pay additional costs for training.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rule. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rule. For each year of the first five years the proposed rule will be in effect, the agency has determined the following:

1. The proposed rule does not create or eliminate a government program.

2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rule does not require an increase or decrease in fees paid to the agency.

5. The proposed rule does create a new regulation. The proposed rule implements a new requirement created by HB 2059 for orthotists and prosthetists and certain other healthcare practitioners to complete a human trafficking prevention training course as a condition of license renewal on or after September 1, 2020.

6. The proposed rule does not expand, limit, or repeal an existing regulation.

7. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rule does not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rule and the proposed rule does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rule does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rule may be submitted to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 605, 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 proposed rule are those set forth in Texas Occupations Code, Chapters 51, 116, and 605. No other statutes, articles, or codes are affected by the proposed rule.

§114.40.Renewal.

(a) Application. Unless the text clearly says otherwise, use of the term licensee shall have the meaning assigned in §114.10 [include both licensees and registrants, and use of the term license shall include both licenses and registrations].

(1) - (3) (No Change.)

(b) (No Change.)

(c) License renewal requirements. To renew a license, a licensee must:

(1) - (4) (No change.)

(5) comply with the continuing education audit process described under §114.50, as applicable; [and]

(6) submit the renewal fee required under §114.80; and [.]

(7) for each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(d) - (f) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000547

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


CHAPTER 115. MIDWIVES

16 TAC §115.14, §115.70

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 115, §115.14 and §115.70, regarding the Midwives Program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 115, implement Texas Occupations Code, Chapter 203, Midwives. The proposed rules are necessary to implement House Bill (HB) 2059 and Senate Bill (SB) 1531, 86th Legislature, Regular Session (2019). These two categories of rule changes have been combined into one proposal to eliminate the need for separate rulemakings.

HB 2059 amends the Occupations Code by adding new Chapter 116, Training Course on Human Trafficking Prevention, which requires certain health care practitioners, including midwives, to successfully complete a training course approved by the Executive Commissioner of the Health and Human Services Commission (HHSC) on identifying and assisting victims of human trafficking as a condition for renewal of a license on or after September 1, 2020. The proposed rules add proof of completion of such a training course to the list of items required for renewal of a midwife license on or after September 1, 2020.

SB 1531 amends Occupations Code, Chapter 203, by removing conviction of a misdemeanor of moral turpitude or a felony from the list of items that authorize the Texas Commission of Licensing and Regulation (Commission) or the executive director of the Department to discipline a midwife or deny an application for a midwife license or its renewal. The proposed rules remove the corresponding language from the rule text to maintain consistency with the statutory language.

The proposed rules were presented to and discussed by the Midwives Advisory Board at its meeting on January 30, 2020. The Advisory Board did not make any changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §115.14, License Renewal, by adding new subsection (b) to include proof of completion of the human trafficking prevention training required by Occupations Code, Chapter 116, in the list of items that must be submitted to the Department for renewal of a midwife license on or after September 1, 2020.

The proposed rules amend §115.70, Standards of Conduct, by removing "conviction of a felony or a misdemeanor involving moral turpitude" from subparagraph (1)(C) and re-labeling the remaining subparagraphs appropriately.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit regarding the required human trafficking prevention training course will be the increased education and awareness of licensees on how to identify the signs of human trafficking.

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit regarding the removal of the reference to "conviction of a felony or a misdemeanor involving moral turpitude" will be providing applicants and licensees with increased certainty in identifying the standards under which license applications may be denied or licensees may be disciplined. Instead of relying on a subjective standard such as "moral turpitude," the Commission or executive director of the Department will apply the standards of statutorily-required criminal conviction guidelines, which clearly denote categories of crimes that are related to the occupation of midwifery.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do create a new regulation. The proposed rules implement a new requirement created by HB 2059 for licensed midwives and certain other healthcare practitioners to complete a human trafficking prevention training course as a condition of license renewal on or after September 1, 2020.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules repeal the authority of the Commission and the executive director of the Department to deny an application for initial licensure or license renewal or to take disciplinary action against any person based upon proof of a conviction of a felony or a misdemeanor involving moral turpitude.

7. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51, 116, and 203. No other statutes, articles, or codes are affected by the proposed rules.

§115.14.License Renewal.

(a) In order to renew every two years, a midwife's application for license renewal must include the following:

(1) a completed license renewal application form which shall require the provision of the preferred mailing address and telephone number, and a statement of all misdemeanor and felony offenses for which the licensee has been convicted, along with any other information required by the department;

(2) proof of completion of at least 20 contact hours of approved midwifery education since March 1 of the previous two-year renewal period;

(3) proof of a current CPR certification for health care providers from one of the following:

(A) the American Heart Association;

(B) equivalent certification for the professional rescuer from the Red Cross;

(C) equivalent certification for healthcare and professional rescuer from the National Safety Council; or

(D) equivalent certification issued by any provider of CPR certification for health care providers currently accepted by the Department of State Health Services' Office of EMS/Trauma Systems Coordination;

(4) proof of current certification for neonatal resuscitation, §§1 - 4, from the American Academy of Pediatrics;

(5) a nonrefundable renewal fee; and

(6) proof of passing the jurisprudence examination approved by the department in the four years preceding renewal.

(b) For each license renewal on or after September 1, 2020, the licensed midwife must complete the human trafficking prevention training required under Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

§115.70.Standards of Conduct.

The following are grounds for denial of application for licensure or license renewal and for disciplinary action.

(1) The commission or executive director may deny an application for initial licensure or license renewal and may take disciplinary action against any person based upon proof of the following:

(A) violation of the Act or rules adopted under the Act;

(B) submission of false or misleading information to the department;

[(C) conviction of a felony or a misdemeanor involving moral turpitude;]

(C) [(D)] intemperate use of alcohol or drugs while engaged in the practice of midwifery;

(D) [(E)] unprofessional or dishonorable conduct that may reasonably be determined to deceive or defraud the public;

(E) [(F)] inability to practice midwifery with reasonable skill and safety because of illness, disability, or psychological impairment;

(F) [(G)] judgment by a court of competent jurisdiction that the individual is mentally impaired;

(G) [(H)] disciplinary action taken by another jurisdiction affecting the applicant's legal authority to practice midwifery;

(H) [(I)] submission of a birth or death certificate known by the individual to be false or fraudulent, or other noncompliance with Health and Safety Code, Chapter 191, or 25 Texas Administrative Code (TAC), Chapter 181 (relating to Vital Statistics);

(I) [(J)] noncompliance with Health and Safety Code, Chapter 244, or 25 TAC, Chapter 137 (relating to Birthing Centers);

(J) [(K)] failure to practice midwifery in a manner consistent with the public health and safety;

(K) [(L)] failure to submit midwifery records in connection with the investigation of a complaint;

(L) [(M)] a lack of personal or professional character in the practice of midwifery;

(M) [(N)] failure to use generally accepted standards of midwifery care;

(N) [(O)] failure to exercise ordinary diligence in the provision of midwifery care;

(O) [(P)] failure to act competently in the provision of midwifery care; or

(P) [(Q)] a material misrepresentation knowingly made to the department on any matter or to a client during the provision of midwifery care.

(2) The department may refuse to renew the license of a person who fails to pay an administrative penalty imposed under the Act, unless enforcement of the penalty is stayed or a court has ordered that the administrative penalty is not owed.

(3) The commission or executive director may revoke course approval if:

(A) the course no longer meets one or more of the standards established by this subsection;

(B) the course supervisor, instructor(s), or preceptor(s) do not have the qualifications required by this subsection;

(C) course approval was obtained by fraud or deceit;

(D) the course supervisor falsified course registration, attendance, completion and/or other records; or

(E) continued approval of the course is not in the public interest.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000507

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


CHAPTER 116. DIETITIANS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 116, Subchapter A, §116.2; Subchapter C, §116.20; Subchapter E, §116.40 and §116.42; Subchapter F, §§116.50, 116.51, and 116.53; Subchapter I, §§116.80 - 116.82; Subchapter K, §§116.100, 116.101, 116.104, and 116.105; Subchapter M, §116.120; and Subchapter O, §116.141 and §116.142; proposes the repeal of existing rules at Subchapter C, §116.21; Subchapter D, §116.30; Subchapter J, §116.90; and Subchapter N, §§116.130 - 116.132; and proposes new rules at Subchapter C, §116.22; and Subchapter M, §§116.121 - 116.123, regarding the Dietitians program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 116, implement Texas Occupations Code, Chapter 701, Dietitians. The proposed rules are necessary to implement three categories of changes: bill implementation changes, Licensing Workgroup changes, and terminology and other clean-up changes.

Bill Implementation Changes

The proposed rules implement House Bill (HB) 2847 and HB 2059, 86th Legislature, Regular Session, 2019. HB 2847 was an omnibus bill that affected multiple programs. Article 12 of the bill made clean-up changes to the Dietitians statute. Article 7 of the bill applied to multiple programs, including Dietitians. The proposed rules implement Article 7, §§7.003, 7.004, and 7.008 by providing notice to licensees regarding the new complaint-related provisions.

HB 2059 requires certain health care practitioners to complete a human trafficking prevention training course approved by the Health and Human Services Commission as a condition for license renewal. Dietitians are affected by this bill. The proposed rules implement HB 2059 by requiring dietitians to take the training course for each license renewal on or after September 1, 2020.

Licensing Workgroup Changes

The proposed rules also implement the changes recommended by the Dietitians Advisory Board Licensing Workgroup and Department staff. These changes: streamline the license application process requirements; consolidate the education and experience requirements into one subchapter; update the experience requirements; remove the jurisprudence exam requirement at renewal; revise and clean up the continuing education requirements; update the license fitness requirements; remove the license registry information; and update the advertising rule requirements.

Terminology and Other Clean-up Changes.

Finally, the proposed rules make terminology and other clean-up changes. These changes: replace existing language with gender neutral language and "person first respectful language"; remove unnecessary provisions; clean-up terminology and statutory cross-references; and consolidate the complaint and enforcement provisions into one subchapter.

The proposed rules were presented to and discussed by the Dietitians Advisory Board at its meeting on January 16, 2020. The Advisory Board did not make any changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend Subchapter A. General Provisions.

The proposed rules amend §116.2, Definitions. The proposed rules add a definition for "Accreditation Council for Education in Nutrition and Dietetics (ACEND)," remove the definition of "CPE" (continuing professional experience), and renumber the definitions accordingly. (Licensing Workgroup Changes)

The proposed rules amend Subchapter C. Education Requirements.

The proposed rules amend the title of Subchapter C to read "Education and Experience Requirements." The proposed rules combine Subchapters C and D into one subchapter. The experience requirements under Subchapter D are being relocated to Subchapter C. (Licensing Workgroup Changes)

The proposed rules amend the title of §116.20 to "Education Requirements" "Degrees and Course Work." With the addition of the experience requirements to this subchapter, the proposed rules clarify that §116.20 contains the education requirements.

The proposed rules also amend §116.20 to streamline the license application process and restructure and clarify the existing provisions.

The proposed rules amend subsections (c) and (d) regarding "an equivalent major course of study approved by the Department" as prescribed under Texas Occupations Code §701.254(1)(B). The Department has determined that a major course of study that is acceptable to the Commission on Dietetic Registration (CDR) to qualify to take the CDR examination is "an equivalent major course of study approved by the Department" and is acceptable to the Department for licensure. The proposed rules amend subsection (c) to clearly state the statutory requirements under §701.254(1) and amend subsection (d) to remove the option that details specific course work and semester hours. The proposed rules eliminate the need for the applicant to send the applicant's transcripts to the Department.

The proposed rules add new subsection (e) that requires the applicant to provide an active CDR registration number at the time of license application to show proof of meeting the education requirements under this section. This change will streamline the license application process. New subsection (e) aligns with the requirements under §§116.22(c), 116.42(e), and 116.50(b).

The proposed rules delete former subsections (e), (f), and (g), since these provisions are no longer necessary. (Licensing Workgroup Changes)

The proposed rules repeal §116.21, Transcripts. The proposed rules streamline the license application process by eliminating the submission of transcripts to the Department. CDR has already reviewed the applicant's transcripts to determine eligibility to take the CDR examination. Transcripts, degrees, and coursework that are acceptable to CDR for qualifying to take the CDR exam are acceptable to the Department for licensure. The applicant only needs to provide the active CDR registration number to the Department. (Licensing Workgroup Changes)

The proposed rules add new §116.22, Experience Requirements--Internships and Professional Experience Programs. This new section was former §116.30. It has been relocated from Subchapter D, Experience Requirements. (Licensing Workgroup Changes)

The proposed rules under subsection (a) restate the statutory requirements under Texas Occupations Code §701.254(2). The proposed rules under subsection (b) update the current rule requirements regarding internships in dietetics practice and preplanned, documented, professional experience programs in dietetics practice. The new proposed rules reflect the possible experience options that are still within the authority and scope of the Dietitians statute.

The proposed rules under subsection (c) have been updated to require the applicant to provide an active CDR registration number, instead of a copy of the CDR registration card, at the time of license application to show proof of meeting the experience requirements under this section. This change will streamline the license application process. New subsection (c) aligns with the requirements under §§116.20(e), 116.42(e), and 116.50(b). (Licensing Workgroup Changes)

The proposed rules repeal Subchapter D. Experience Requirements.

Subchapter D is being eliminated, and the education and experience requirements are being combined under Subchapter C. (Licensing Workgroup Changes)

The proposed rules repeal §116.30, Preplanned Professional Experience Programs and Internships, and relocate the experience requirements to Subchapter C with the education requirements. The provisions under this section are located under new §116.22. (Licensing Workgroup Changes)

The proposed rules amend Subchapter E. Examination Requirements.

The proposed rules amend §116.40, License Examination Requirements--General. The proposed rules streamline and clarify the license examination requirements. The proposed rules remove subsection (c), which is unnecessary in the rules since the Department-required examination is the CDR examination. (Licensing Workgroup Changes)

The proposed rules amend §116.42, License Examination Process. The proposed rules streamline and clarify the license examination requirement. The proposed rules require the applicant to submit the CDR registration number as proof of passing the examination. No other documentation must be provided to the Department. The proposed new subsection (e) aligns with the requirements under §§116.20(e), 116.22(c), and 116.50(b). (Licensing Workgroup Changes)

The proposed rules amend Subchapter F. Licensed Dietitians.

The proposed rules amend §116.50, Licensed Dietitians--Application and Eligibility Requirements. The proposed rules streamline and clarify the license application requirements. Under subsection (b), the applicant no longer has to submit transcripts or a copy of the active CDR registration card. The applicant only needs to provide the active CDR registration number to the Department to show proof of meeting the education, experience, and examination requirements. Under subsection (c), clarifying language has been added regarding the criminal history background checks. (Licensing Workgroup Changes) In addition, the proposed rules delete subsection (e) to implement HB 2847, Article 12, which repealed §701.151(b)(4). (Bill Implementation Changes)

The proposed rules amend §116.51, Licensed Dietitians--Fitness of Applicants for Licensure. The proposed rules update the cross-reference in subsection (a) to implement HB 2847, Article 12. (Bill Implementation Changes) In addition, the proposed rules update the fitness requirements that are prescribed by statute. The proposed rules eliminate unnecessary requirements and include disciplinary actions taken by CDR. The proposed rules also make clean-up changes. (Licensing Workgroup Changes)

The proposed rules amend §116.53, Licensed Dietitians--License Term; Renewals. The proposed rules under subsection (c) remove the requirement to submit proof of completing the jurisprudence exam for a license renewal. The proposed rules also relocate the criminal history and fitness provisions from subsection (c) to mirror the initial application structure. The proposed rules under subsection (d) add clarifying language regarding the criminal history background checks. (Licensing Workgroup Changes)

In addition, the proposed rules under §116.53 implement HB 2059 and HB 2847, Article 12. New subsection (f) is added to implement HB 2059 regarding the required human trafficking prevention training. Current subsection (e) has been eliminated to implement HB 2847, Article 12, by removing the reference to §701.151. While §701.151(b)(4) was repealed by HB 2847, §701.401 still exists. Section 701.401 includes a mandatory refusal to renew provision. (Bill Implementation Changes)

Finally, the proposed rules under §116.53 consolidate current subsections (d), (e), and (f) into one subsection that is re-lettered as subsection (g). The text of current subsections (e) and (f) has been removed and replaced with cross-references to the statutory provisions. The cross-reference to §701.151 has been replaced with the cross-reference to §701.401. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter I. Continuing Education.

The proposed rules amend §116.80, Continuing Education--General Requirements and Hours. The proposed rules remove an unnecessary provision under subsection (a). Provisional licenses no longer exist, so it is no longer necessary to specify the applicability of this section. The proposed rules remove subsection (c) since §116.81(c) and §116.83(b) address continuing education hours completed before and after the license term. (Licensing Workgroup Changes)

The proposed rules amend §116.81, Continuing Education--Approved Courses and Credits. The proposed rules under subsection (c) make clean-up changes. The proposed rules under subsection (d) allow the jurisprudence exam to be taken as part of continuing education hours, but the jurisprudence exam is no longer required for renewal. The proposed rules under subsection (d) grant one hour of continuing education credit for taking the jurisprudence exam. The proposed rules under subsection (e) eliminate the requirement to take the jurisprudence exam at renewal. (Licensing Workgroup Changes)

The proposed rules amend §116.82, Continuing Education--Records and Audits. The proposed rules update the terminology in subsection (a) to use gender neutral language. The proposed rules update the references in subsections (a) and (b) from "license holder" to "licensee" for consistency purposes throughout this section and the chapter. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter J. Responsibilities of the Commission and the Department.

The proposed rules repeal §116.90, Registry. The proposed rules repeal the registry rule due to changes in the licensee information that is posted on the Department website. The registry is required by statute under Texas Occupations Code §701.1511. The registry is still available, but a rule is not necessary. The proposed rules eliminate provisions referencing specific information that will be included in the registry or posted on the Department website. (Licensing Workgroup Changes)

The proposed rules amend Subchapter K. Responsibilities of the Licensee and Code of Ethics.

The proposed rules amend §116.100, Display of License. The proposed rules remove an unnecessary provision under subsection (a). Provisional licenses no longer exist, so it is no longer necessary to specify the applicability of this section. The remaining subsections are re-lettered. (Terminology and Other Clean-up Changes)

The proposed rules amend §116.101, Changes of Name or Address. The proposed rules remove an unnecessary provision under subsection (a). Provisional licenses no longer exist, so it is no longer necessary to specify the applicability of this section. The remaining subsections are re-lettered. Re-lettered subsection (b) has been separated into two subsections. Re-lettered subsection (b) addresses name changes and updates the language regarding the submission of changes. New subsection (c) addresses obtaining a duplicate license. (Terminology and Other Clean-up Changes)

The proposed rules amend §116.104, Unlawful, False, Misleading, or Deceptive Advertising. The proposed rules update the terminology under subsection (a) to use gender neutral language. (Terminology and Other Clean-up Changes) In addition, the proposed rules remove the blanket prohibition on testimonials under subsection (b) in accordance with Texas Attorney General Opinion JC-0458 (February 8, 2002). The remaining provisions are renumbered. (Licensing Workgroup Changes)

The proposed rules amend §116.105, Code of Ethics. The proposed rules update the terminology in subsections (a) and (b) to use gender neutral language and to use "person first respectful terminology." The proposed rules also update the cross-references to other statutes in subsections (a) and (e). (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter M. Complaints.

The proposed rules amend the title of Subchapter M to read "Complaints and Enforcement Provisions." The proposed rules combine Subchapters M and N into one subchapter. The enforcement sections under Subchapter N are being relocated to Subchapter M. (Terminology and Other Clean-up Changes)

The proposed rules amend the title of §116.120 to read "Complaints." This change reflects the expanded scope of the section.

The proposed rules under §116.120 also add new subsection (b) as a notice to licensed dietitians and to the public regarding qualified persons, including licensees and advisory board members, assisting the Department in reviewing and investigating complaints and being immune from liability related to those activities. (HB 2847, §7.003)

In addition, the proposed rules under §116.120 add new subsection (c) as a notice to licensed dietitians and to the public regarding the confidentiality of complaint and disciplinary information. Former Texas Occupations Code §701.2041 addressed these issues for dietitians. HB 2847, Article 7, §7.008, repealed §701.2041 and similar confidentiality provisions in other health professions statutes. HB 2847, Article 7, §7.004, added a new standardized confidentiality provision in Texas Occupations Code, Chapter 51 that is applicable to certain specified health professions, including dietitians. (HB 2847, §7.004). (Bill Implementation Changes)

The proposed rules add new §116.121, Administrative Penalties and Sanctions. This new section was former §116.130. There are no proposed changes to the text. (Terminology and Other Clean-up Changes)

The proposed rules add new §116.122, Enforcement Authority. This new section was former §116.131. There are no proposed changes to the text. (Terminology and Other Clean-up Changes)

The proposed rules add new §116.123, License Surrender. This new section was former §116.132. There are no proposed changes to the text. (Terminology and Other Clean-up Changes)

The proposed rules repeal Subchapter N. Enforcement Provisions.

Subchapter N is being eliminated, and the complaints and enforcement provisions are being combined under Subchapter M. (Terminology and Other Clean-up Changes)

The proposed rules repeal §116.130, Administrative Penalties and Sanctions. This section has been relocated to new §116.121. (Terminology and Other Clean-up Changes)

The proposed rules repeal §116.131, Enforcement Authority. This section has been relocated to new §116.122. (Terminology and Other Clean-up Changes)

The proposed rules repeal §116.132, License Surrender. This section has been relocated to new §116.123. (Terminology and Other Clean-up Changes)

The proposed rules amend Subchapter O. The Dietetic Profession.

The proposed rules amend §116.141, Provider of Nutrition Services. The proposed rules update the terminology in subsections (b) and (c) to use gender neutral language. (Terminology and Other Clean-up Changes.)

The proposed rules amend §116.142, Licensed Dietitians Providing Diabetes Self-Management Training. The proposed rules update the terminology in subsection (c) to use gender neutral language. (Terminology and Other Clean-up Changes.)

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to the state government as a result of enforcing or administering the proposed rules. It is estimated that the costs to administer or enforce the proposed rule changes to be minimal, if any, to the State. The activities required to implement the proposed rule changes are one-time program administration tasks that are routine in nature, such as modifying or revising forms, publications, and website information. By streamlining the application process, it is anticipated that there may be a minimal reduction in workload resulting from the reduced number of deficient applications received. However, the number of deficient applications in any year is not large and any reduction in workload would be de minimis. The overall cost to regulate the Dietitians program would not change.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to local government as a result of enforcing or administering the proposed rules. Local government does not regulate licensure of dietitians.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state government as a result of enforcing or administering the proposed rules. No new fees or increased fees have been proposed. HB 2059 sets out the requirement for licensees to complete the human trafficking prevention training and requires the Health and Human Services Commission (HHSC) to provide at least one free human trafficking prevention training option. If a licensee chooses to pay a fee for the required training, the cost is discretionary and the fee would be paid to the training provider, not to the Department. In addition, no fees have been removed by the proposed rules. Removing the requirement for licensed dietitians to complete the jurisprudence exam at each renewal will not impact the State's revenue because the exam is administered by a third-party vendor. Fees are collected by the third-party vendor, not by the Department.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to local government as a result of enforcing or administering the proposed rules. Fees associated with the program are remitted to the state and not to local governments.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state governments or local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Texas Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be the implementation of legislative changes for more effective regulation of the Dietitians program. In implementing HB 2847, individuals who assist the agency with complaints and investigations will be immune from liability, which may increase availability of subject matter experts and could lead to a faster resolution of complaints and investigations. In implementing HB 2059, the HHSC-approved human trafficking prevention training courses will educate and bring awareness to licensees on how to identify the signs of human trafficking, which is a benefit to the public.

There will also be a benefit to license applicants for each year of the first five-year period the proposed rules are in effect. The proposed rules streamline the license application process, which expedites issuing licenses and allows new licensees to begin employment sooner.

In addition, Mr. Couvillon has determined that there will be a benefit, including a reduction in costs, to current licensees in complying with the proposed rules. Licensees will no longer be required to complete the jurisprudence examination at each renewal, for a savings of $34 per licensee every two years. In addition, licensees will benefit from the removal of the rule prohibiting testimonials in advertising. This change would allow licensed dietitians to enhance their advertising, thereby possibly increasing business and revenue. This change also would provide the public with more information about dietetic services and aid in the selection a licensed dietitian.

Finally, the public and the licensees will benefit from the updates to the existing rules, the consolidation of subchapters, and the terminology and other clean-up changes made in the proposed rules. These changes will make the rules current and more user-friendly.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. HB 2059 sets out the requirement for licensees to complete the human trafficking prevention training, and it requires the Health and Human Services Commission (HHSC) to approve these training courses and to provide at least one free training course option. If a licensee chooses to pay a fee for the required training, that cost would be discretionary on the part of the licensee and would not be a result of the Department's proposed rules. Additionally, any cost to attend a human trafficking prevention training course would be established by the training provider and therefore cannot be estimated by the Department. Any costs associated with the human trafficking prevention training are a result of the new statute, Texas Occupations Code, Chapter 116, as added by HB 2059. There are no costs imposed by the Department's proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Texas Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Texas Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do create a new regulation. The proposed rules implement HB 2059 and create a new regulation requiring licensed dietitians to complete a HHSC-approved human trafficking prevention training course as a condition of license renewal. This requirement becomes effective September 1, 2020.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules repeal: (a) the requirement for a licensed dietitian to complete a jurisprudence exam at each license renewal; (b) some of the application requirements, such as the requirement to submit a copy of the CDR registration card and official transcripts; (c) the requirement from the rules for the Department to have a registry of license holders available (the requirement is still in the statute); (d) the prohibition against testimonials in advertising; and (e) the option for an equivalent major course of study approved by the Department which does not involve the CDR.

7. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §116.2

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed rules.

§116.2.Definitions.

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

(1) Academy--The Academy of Nutrition and Dietetics, which is the national professional association of dietitians.

(2) Accreditation Council for Education in Nutrition and Dietetics (ACEND)--The Academy of Nutrition and Dietetics' accrediting agency for dietetic education programs.

(3) [(2)] Accredited facilities--Facilities accredited by the Joint Commission on Accreditation of Health Care Organizations.

(4) [(3)] Act--The Licensed Dietitian Act, Texas Occupations Code, Chapter 701.

(5) [(4)] Advisory Board--Dietitians Advisory Board.

(6) [(5)] Certified facilities, agencies, or organizations--Facilities, agencies, or organizations certified by federal agencies.

(7) [(6)] Commission--The Texas Commission of Licensing and Regulation.

(8) [(7)] Commission on Dietetic Registration (CDR)--The Commission on Dietetic Registration, the credentialing agency for the Academy of Nutrition and Dietetics, is the agency that evaluates credentials, administers proficiency examinations, and issues certificates of registration to qualifying dietitians, and is a member of the National Commission on Health Certifying Agencies. The Commission on Dietetic Registration also approves continuing education activities.

[(8) CPE--Continuing Professional Experience.]

(9) Department--The Texas Department of Licensing and Regulation.

(10) Dietitian--A person licensed under the Act.

(11) Dietetics--The professional discipline of applying and integrating scientific principles of food, nutrition, biochemistry, physiology, management, and behavioral and social sciences under different health, social, cultural, physical, psychological, and economic conditions to the proper nourishment, care, and education of individuals or groups throughout the life cycle to achieve and maintain the health of people. The term includes, without limitation, the development, management, and provision of nutrition services.

(12) Executive director--The executive director of the department.

(13) Licensed dietitian (LD)--A person licensed under the Act.

(14) Licensed facilities, agencies, or organizations--Facilities, agencies, or organizations licensed by state agencies.

(15) Licensee--A person who holds a current license as a dietitian issued under the Act.

(16) Nutrition assessment--The evaluation of the nutritional needs of individuals and groups based on appropriate biochemical, anthropometric, physical, and dietary data to determine nutrient needs and recommend appropriate nutritional intake including enteral and parenteral nutrition. Nutrition assessment is an important component of medical nutrition therapy.

(17) Nutrition counseling--Advising and assisting individuals or groups on appropriate nutritional intake by integrating information from the nutrition assessment with information on food and other sources of nutrients and meal preparation consistent with cultural background and socioeconomic status. Nutrition counseling is an important component of medical nutrition therapy.

(18) Nutrition services--This term means:

(A) assessing the nutritional needs of individuals and groups and determining resources and constraints in the practice;

(B) establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints;

(C) providing nutrition counseling in health and disease;

(D) developing, implementing, and managing nutrition care systems; or

(E) evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition care services.

(19) Registered dietitian (RD)--A person who is currently registered as a dietitian by the Commission on Dietetic Registration.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000515

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER C. EDUCATION AND EXPERIENCE REQUIREMENTS

16 TAC §116.20, §116.22

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed rules.

§116.20.Education Requirements--Degrees and Course Work.

(a) The department shall accept as meeting licensure requirements baccalaureate and post-baccalaureate degrees and course work received from United States colleges or universities which held accreditation, at the time the degree was conferred or the course work was taken, from accepted regional educational accrediting associations as reported by the American Association of Collegiate Registrars and Admissions Officers.

(b) Degrees and course work received at foreign colleges and universities shall be acceptable only if such course work could be counted as transfer credit from accredited colleges or universities as reported by the American Association of Collegiate Registrars and Admissions Officers.

(c) A person [Persons] applying for licensure must possess a baccalaureate or post-baccalaureate degree with:

(1) a major course of study in human nutrition, food and nutrition, nutrition education dietetics, or food systems management; or

(2) an equivalent major course of study approved by the department.

(d) For purposes of meeting the requirement under subsection (c)(2), the department will accept a major course of study that is acceptable to CDR to qualify for the CDR examination. [In place of the requirements in subsection (c), a person may have an equivalent major course of study defined as either:]

[(1) a baccalaureate or post-baccalaureate degree or course work including a minimum of thirty (30) semester hours in the following areas:]

[(A) twelve (12) semester hours must be specifically designed to train a person to apply and integrate scientific principles of human nutrition under different health, social, cultural, physical, psychological, and economic conditions to the proper nourishment, care, and education of individuals or groups throughout the life cycle;]

[(B) six (6) semester hours must be from human nutrition, food and nutrition, dietetics, or food systems management; and]

[(C) twelve (12) semester hours must be from four of the following three-hour courses:]

[(i) upper-division human nutrition related to disease;]

[(ii) upper-division food service systems management;]

[(iii) bio- or physiological chemistry, or advanced normal human nutrition;]

[(iv) food science; or]

[(v) upper-division nutrition education; or]

[(2) a baccalaureate or post-baccalaureate degree, including a major course of study meeting the minimum academic requirements to qualify for examination by the Commission on Dietetic Registration.]

(e) An applicant must provide an active CDR registration number at the time of license application to show proof of meeting the education requirements under this section. The applicant's degree(s) and coursework that are accepted for registration by the CDR shall be acceptable for licensure by the department.

[(e) The relevance to licensure of academic courses, the titles of which are not self-explanatory, must be substantiated through course descriptions in official school catalogs or bulletins or by other means acceptable to the department.]

[(f) In the event that an academic deficiency is present, an applicant may have one year in which to complete the additional course work acceptable to the department before the application will be voided and the applicant will be required to reapply and to pay additional application fees.]

[(g) The semester hours may be part of a degree plan or in addition to a degree.]

§116.22.Experience Requirements--Internships and Professional Experience Programs.

(a) An applicant for examination must have satisfactorily completed an approved internship or preplanned, documented, professional experience program in dietetics practice of not less than 900 hours under the supervision of a licensed dietitian or a registered dietitian.

(b) For purposes of meeting the requirements under subsection (a), the department approves and accepts the following, which are approved or recognized by the CDR or ACEND:

(1) a dietetic internship;

(2) a coordinated undergraduate program in dietetics;

(3) an individualized supervised practice pathway (ISPP) in dietetics; or

(4) a professional experience program in dietetics.

(c) An applicant must provide an active CDR registration number at the time of license application to show proof of completing the experience requirements under this section. The applicant's internship or professional experience program accepted for registration by the CDR shall be acceptable for licensure by the department.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000519

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER C. EDUCATION REQUIREMENTS

16 TAC §116.21

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposal are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed repeal.

§116.21.Transcripts.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000536

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER D. EXPERIENCE REQUIREMENTS

16 TAC §116.30

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposal are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed repeal.

§116.30.Preplanned Professional Experience Programs and Internships.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000540

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER E. EXAMINATION REQUIREMENTS

16 TAC §116.40, §116.42

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed rules.

§116.40.License Examination Requirements--General.

(a) An [Except as provided by subsection (c), an] applicant must pass a license examination to qualify for a dietitian license under this chapter.

(b) Pursuant to Texas Occupations Code §701.253, the examination required for licensure as a Licensed Dietitian is the examination given by the Commission on Dietetic Registration.

[(c) The department shall waive the examination requirement for an applicant who, at the time of application, is a dietitian registered by the Commission on Dietetic Registration and whose registration is in active status.]

(c) [(d)] An applicant must meet the education and experience requirements under Texas Occupations Code §701.254 to qualify to take the licensing examination.

§116.42.License Examination Process.

(a) An applicant who wishes to take the examination is responsible for completing the examination registration form and submitting it with the appropriate fee to the Commission on Dietetic Registration (CDR) or its designee.

(b) Examinations administered by the CDR or its designee will be held in locations to be announced by the CDR or its designee.

(c) Examinations administered by the CDR or its designee shall be graded by the CDR or its designee. The passing grade is determined by the CDR.

(d) The CDR or its designee shall notify the applicant of the examination results. [Applicants must provide documentation showing examination passage to the department.]

(e) An applicant must provide an active CDR registration number at the time of license application to show proof of passing the CDR examination.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000520

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER F. LICENSED DIETITIANS

16 TAC §§116.50, 116.51, 116.53

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed rules.

§116.50.Licensed Dietitians--Application and Eligibility Requirements.

(a) Unless otherwise indicated, an applicant must submit all required information and documentation of credentials on official department-approved forms.

(b) To apply for an initial license, an [An ] applicant must submit [the following required documentation]:

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

[(2) official transcript(s) of all relevant college work showing successful completion of education requirements under Texas Occupations Code §701.254(1);]

(2) [(3)] [copy of] the applicant's active registration number [card ] issued by the Commission on Dietetic Registration as proof that the applicant has met the education, experience, and examination requirements specified in Texas Occupations Code Chapter 701 and in this chapter;[:]

[(A) successfully completed the preplanned professional experience program or internship requirements under Texas Occupations Code §701.254(2) and §116.30; and]

[(B) passed the examination prescribed under Texas Occupations Code §701.253 and §116.40 and §116.42;]

(3) [(4)] the form providing \information regarding other state licenses, certificates, or registrations that an applicant holds or held, if applicable;

(4) [(5)] proof of successfully completing the Texas Jurisprudence Examination under Texas Occupations Code §701.2575 and rule §116.44; and

(5) [(6)] the fee required under §116.110.

(c) The applicant must successfully pass a criminal history background check pursuant to Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(d) The applicant must meet the fitness requirements under §116.51.

[(e) Pursuant to Texas Occupations Code §701.151, the commission or the department shall deny the application for violation of the Act, this chapter, or a provision of the Code of Ethics in §116.105.]

§116.51.Licensed Dietitians--Fitness of Applicants for Licensure.

(a) Pursuant to Texas Occupations Code §701.151(b)(2) [§701.151(b)(3)], this section applies to initial applications, renewal applications, and applications for reciprocal licenses.

(b) In determining the fitness of an applicant for licensure, the department shall consider the following:

(1) the ability of an applicant to uphold the standards and requirements of the profession [the skills and abilities of an applicant to provide adequate nutrition services]; and

(2) the ethical behavior of an applicant in relationships with other professionals and clients.

(c) In determining the fitness of an applicant for licensure the department may request and consider any of the following:

(1) disciplinary actions taken by CDR against the applicant's CDR registration;

[(1) evaluations of supervisors or instructors;]

(2) disciplinary actions taken by another jurisdiction against the applicant's license, registration, or certification held in another jurisdiction;

[(2) statements from persons submitting references for the applicant;]

[(3) evaluations of employers and/or professional associations;]

(3) [(4)] transcripts or findings from official court, hearing, or investigative proceedings; and

(4) [(5)] any other information which the commission or department considers pertinent to determining the fitness of an applicant.

(d) The following actions may be the basis for denying an application [substantiation of any of the following items related to an applicant may be, as the department determines, the basis for the denial of licensure of the applicant]:

(1) disciplinary action taken by CDR or another jurisdiction against the applicant [lack of the necessary skills and abilities to provide adequate nutrition services];

(2) misrepresentation of professional qualifications or affiliations with associations;

(3) misrepresentation of nutrition services, dietary supplements and the efficacy of nutrition services to clients;

(4) use of misleading or false advertising;

(5) violation of any provision of any federal or state statute relating to confidentiality of client communication and/or records;

(6) abuse of alcohol or drugs or the use of illegal drugs of any kind in any manner which detrimentally affects the provision of nutrition services;

(7) any misrepresentation in application or other materials submitted to the department; and

(8) the violation of any commission rule in effect at the time of application which is applicable to an unlicensed person.

§116.53.Licensed Dietitians--License Term; Renewals.

(a) A license held by a licensed dietitian is valid for two years after the date of issuance and may be renewed biennially.

(b) Each licensee is responsible for renewing the license before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification prior to the expiration date of the license shall not excuse failure to file for renewal or late renewal.

(c) To renew a license, a licensed dietitian must:

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

[(2) submit proof of successfully completing the Texas Jurisprudence Examination;]

[(3) successfully pass a criminal history background check;]

[(4) meet the fitness requirements under §116.51;]

(2) [(5)] complete twelve (12) hours of continuing education as required under §116.80;

(3) [(6)] comply with the continuing education audit process described under §116.82, as applicable; and

(4) [(7)] submit the fee required under §116.110.

(d) The licensed dietitian must successfully pass a criminal history background check pursuant to Occupations Code, Chapters 51 and 53, and the department's criminal conviction guidelines.

(e) The licensed dietitian must meet the fitness requirements under §116.51.

(f) For each license renewal on or after September 1, 2020, the licensed dietitian must complete the human trafficking prevention training required under Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(g) [(d)] The commission, executive director, or department shall renew the license of the licensee who has met all requirements for renewal, except as provided under Texas Occupations Code §701.304 and §701.401 [in the following sections].

[(e) Pursuant to Texas Occupations Code §701.151, the commission or department shall not renew the license of the licensee who is in violation of the Act, this chapter, or a provision of the Code of Ethics under §116.105 at the time of application for renewal.]

[(f) Pursuant to Texas Occupations Code §701.304, the commission or department may refuse to renew the license of a person who fails to pay an administrative penalty imposed under the Act unless enforcement of the penalty is stayed or a court has ordered that the administrative penalty is not owed.]

(h) [(g)] A person whose license has expired may late renew the license in accordance with §60.31 and §60.83.

(i) [(h)] A person whose license has expired may not use the title or represent or imply that he or she has the title of "licensed dietitian" or use the letters "LD", and may not use any facsimile of those titles in any manner.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000522

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER I. CONTINUING EDUCATION

16 TAC §§116.80 - 116.82

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed rules.

§116.80.Continuing Education--General Requirements and Hours.

[(a) Licensed dietitians are required to take continuing education.]

[(b)] A licensed dietitian must complete a minimum of twelve (12) continuing education hours during each two-year licensing period.

[(c) The hours must have been completed prior to the date of expiration of the license.]

§116.81.Continuing Education--Approved Courses and Credits.

(a) The department has determined that to meet the continuing education requirements under the Act and this chapter a licensee must take the courses and hours offered or approved by the Commission on Dietetic Registration or its agents or a regionally accredited college or university.

(b) Continuing education undertaken by a licensee for renewal shall be acceptable if the experience falls in one or more of the following categories:

(1) academic courses related to dietetics;

(2) clinical courses related to dietetics;

(3) in-service educational programs, training programs, institutes, seminars, workshops and conferences in dietetics;

(4) instructing or presenting continuing education programs or activities that were offered or approved by the Commission on Dietetic Registration or its agents. Multiple presentations of the same programs only count once;

(5) acceptance and participation in poster sessions offered by a nationally recognized professional organization in the dietetics field or its state equivalent organization. Participation will be credited one hour for six (6) poster sessions with a maximum of two clock hours for twelve (12) poster sessions;

(6) books or articles published by the licensee in relevant professional books and referred journals. A minimum of three (3) continuing education hours will be credited for the publication; or

(7) self-study of professional materials that include self-assessment examinations. Six (6) hours maximum will be credited for self-study during the two-year licensure period.

(c) Activities unacceptable as continuing education for which the department may not grant continuing education credit are:

(1) education incidental to the regular professional activities of a licensee such as learning occurring from experience or research;

(2) professional organization activity such as serving on committees or councils or as an officer;

(3) any continuing education activity completed before [or after] the current license term [period of time described in subsection (a)(1)];

(4) activities described in subsection (b), which have been completed more than once during the current license term [continuing education period];

(5) performance of duties that are routine job duties or requirements; or

(6) participation in conference exhibits.

(d) Continuing education experiences shall be credited as follows.

(1) Completion of course work at or through an accredited college or university shall be credited for each semester hour on the basis of two clock hours of credit for each semester hour successfully completed for credit or audit.

(2) An activity which meets the criteria of subsection (b)(2) or (3) shall be credited on a one-for-one basis with Continuing Professional Education (CPE) [CPE] as approved by the Academy.

(3) A licensee may complete the Texas Jurisprudence Examination as part of the 12 continuing education hours. One hour of continuing education credit will be granted for successful completion of the Texas Jurisprudence Examination.

[(e) The Texas Jurisprudence Examination shall be required as follows:]

[(1) The licensee must successfully complete the Texas Jurisprudence Examination for renewal.]

[(2) Proof of successfully completing the examination must be retained by the licensee as required in §116.82.]

[(3) One hour of continuing education credit will be granted for successful completion of the Texas Jurisprudence Examination.]

§116.82.Continuing Education--Records and Audits.

(a) The department shall employ an audit system for continuing education reporting. The licensee [license holder] shall be responsible for maintaining a record of the licensee's [his or her] continuing education experiences. The certificates, diplomas, or other documentation verifying earning of continuing education hours are not to be forwarded to the department at the time of renewal unless the licensee [license holder] has been selected for audit.

(b) The audit process shall be as follows:

(1) The department shall select for audit a random sample of licensees [license holders] for each renewal month. Licensees [License holders] will be notified of the continuing education audit when they receive their renewal documentation.

(2) If selected for an audit, the licensee shall submit copies of certificates, transcripts, or other documentation satisfactory to the department, verifying the licensee's attendance, participation, and completion of the continuing education. All documentation must be provided at the time of renewal.

(3) Failure to timely furnish this information or providing false information during the audit process or the renewal process are grounds for disciplinary action against the licensee [license holder].

(4) A licensee who is selected for continuing education audit may renew through the online renewal process. However, the license will not be considered renewed until required continuing education documents are received, accepted, and approved by the department.

(5) Licenses will not be renewed until continuing education requirements have been met.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000523

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER J. RESPONSIBILITIES OF THE COMMISSION AND THE DEPARTMENT

16 TAC §116.90

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposal are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed repeal.

§116.90.Registry.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000541

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER K. RESPONSIBILITIES OF THE LICENSEE AND CODE OF ETHICS

16 TAC §§116.100, 116.101, 116.104, 116.105

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed rules.

§116.100.Display of License.

[(a) This section applies to licensed dietitians.]

(a) [(b)] The license certificate must be displayed in an appropriate and public manner as follows.

(1) The license certificate shall be displayed in the primary office or place of employment of the licensee.

(2) In the absence of a primary office or place of employment, or when the licensee is employed at multiple locations, the licensee shall carry a current identification card.

(b) [(c)] Neither the licensee nor anyone else shall display a photocopy of a license certificate or carry a photocopy of an identification card in lieu of the original document. A file copy shall be clearly marked as a copy across the face of the document.

(c) [(d)] Neither the licensee nor anyone else shall make any alteration on a license certificate or identification card.

(d) [(e)] Pursuant to Texas Occupations Code §701.351(b), any certificate or identification card issued by the department remains the property of the department and must be surrendered to the department on demand.

§116.101.Changes of Name or Address.

[(a) This section applies to licensed dietitians.]

(a) [(b)] The licensee shall notify the department of changes in name or mailing address within thirty (30) days of such change(s) on a department-approved form or using a department-approved method.

(b) [(c)] Notification of name changes must be submitted [mailed or faxed] to the department and shall include a copy of a marriage certificate, court decree evidencing such change, or a social security card reflecting the new name.

(c) To receive a duplicate license, the [The] licensee shall submit the duplicate/replacement fee required under §116.110.

§116.104.Unlawful, False, Misleading, or Deceptive Advertising.

(a) A licensee shall use factual information to inform the public and colleagues of the licensee's [his/her] services. A licensee shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification.

(b) False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes, but is not limited to, advertising that:

(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;

(3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;

[(4) contains a testimonial;]

(4) [(5)] causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional;

(5) [(6)] advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;

(6) [(7)] advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;

(7) [(8)] makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or

(8) [(9)] advertises or represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional.

(c) As used in this section, a "health care professional" includes a licensed dietitian or any other person licensed, certified, or registered by the state in a health-related profession.

§116.105.Code of Ethics.

(a) Professional representation and responsibilities.

(1) A licensee shall act [conduct himself/herself ] with honesty, integrity, and fairness.

(2) A licensee shall not misrepresent any professional qualifications or credentials. A licensee shall not make any false or misleading claims about the efficacy of any nutrition services or dietary supplements.

(3) A licensee shall not permit the use of the licensee's [his/her] name for the purpose of certifying that nutrition services have been rendered unless that licensee has provided or supervised the provision of those services.

(4) A licensee shall not promote or endorse products in a manner that is false or misleading.

(5) A licensee shall disclose to a client, a person supervised by the licensee, or an associate any personal gain or profit from any item, procedure, or service used by the licensee with the client, supervisee, or associate.

(6) A licensee shall maintain knowledge and skills required for professional competence. A licensee shall provide nutrition services based on scientific principles and current information. A licensee shall present substantiated information and interpret controversial information without bias.

(7) A licensee shall not abuse alcohol or drugs in any manner which detrimentally affects the provision of nutrition services.

(8) A licensee shall comply with the provisions of the Texas Controlled Substances Act, [the] Health and Safety Code, Chapter 481; [and] the Texas Dangerous Drug Act, Health and Safety Code, Chapter 483[, relating to dangerous drugs]; and any rules of the Department of State Health Services [department] or the Texas State Board of Pharmacy implementing those chapters.

(9) A licensee shall have the responsibility of reporting alleged misrepresentations or violations of commission rules to the department.

(10) A licensee shall comply with any order relating to the licensee which is issued by the commission or the executive director.

(11) A licensee shall not aid or abet the practice or misrepresentation of an unlicensed person when that person is required to have a license under the Act.

(12) A licensee shall not make any false, misleading, or deceptive claims in any advertisement, announcement, or presentation relating to the services of the licensee, any person supervised by the licensee or any dietary supplement.

(13) A licensee shall conform to generally accepted principles and standards of dietetic practice which are those generally recognized by the profession as appropriate for the situation presented, including those promulgated or interpreted by or under the Academy or Commission on Dietetic Registration, and other professional or governmental bodies. A licensee shall recognize and exercise professional judgment within the limits of the licensee's [his/her] qualifications and collaborate with others, seek counsel, or make referrals as appropriate.

(14) A licensee shall not interfere with an investigation or disciplinary proceeding by willful misrepresentation of facts to the department or its authorized representative or by the use of threats or harassment against any person.

(15) A licensee shall report information if required by the following statutes:

(A) Texas Family Code, Chapter 261, concerning abuse or neglect of minors; or

(B) Texas Human Resources Code, Chapter 48, concerning abuse, neglect, or exploitation of elderly persons or persons with disabilities [disabled persons].

(b) Professional relationships.

(1) A licensee shall make known to a prospective client the important aspects of the professional relationship including fees and arrangements for payment which might affect the client's decision to enter into the relationship. A licensee shall bill a client or a third party in the manner agreed to by the licensee and in accordance with state and federal law.

(2) A licensee shall not receive or give a commission or rebate or any other form of remuneration for the referral of clients for professional services.

(3) A licensee shall disclose to clients any interest in commercial enterprises which the licensee promotes for the purpose of personal gain or profit.

(4) A licensee shall take reasonable action to inform a client's physician and any appropriate allied health care provider in cases where a client's nutritional status indicates a change in medical status.

(5) A licensee shall provide nutrition services without discrimination based on race, creed, gender, religion, national origin, or age.

(6) A licensee shall not violate any provision of any federal or state statute relating to confidentiality of client communication and/or records. A licensee shall protect confidential information and make full disclosure about any limitations on the licensee's [his/her] ability to guarantee full confidentiality.

(7) A licensee shall not engage in sexual contact with a client. The term "sexual contact" means any type of sexual behavior described in the Texas Penal Code, §21.01, and includes sexual intercourse. A licensee shall not engage in sexual harassment in connection with professional practice.

(8) A licensee shall terminate a professional relationship when it is reasonably clear that the client is not benefiting from the services provided.

(9) A licensee shall not provide services to a client or the public if by reason of any mental or physical condition of the licensee, the services cannot be provided with reasonable skill or safety to the client or the public.

(10) A licensee shall not provide any services which result in mental or physical injury to a client or which create an unreasonable risk that the client may be mentally or physically harmed.

(11) A licensee shall provide sufficient information to enable clients and others to make their own informed decision regarding nutritional services.

(12) A licensee shall be alert to situations that might cause a conflict of interest or have the appearance of a conflict. A licensee shall make full disclosure when a real or potential conflict of interest arises.

(c) On the written request of a client, a client's guardian, or a client's parent, if the client is a minor, a licensee shall provide, in plain language, a written explanation of the charges for client nutrition services previously made on a bill or statement for the client. This requirement applies even if the charges are to be paid by a third party.

(d) A licensee may not persistently or flagrantly overcharge or overtreat a client.

(e) A licensee shall be subject to disciplinary action by the commission or department if [under the Crime Victims Compensation Act, Texas Code of Criminal Procedure, Article 56.31,] the licensee is issued a public letter of reprimand, is assessed a civil penalty by a court, or has been convicted and ordered to pay court costs under the Crime Victims Compensation Act, Texas Code of Criminal Procedure, Chapter 56, Subchapter B (effective until January 1, 2021) and Chapter 56B (effective on January 1, 2021) [, Article 56.55].

(f) A violation of any provision of this section by a person who is an applicant or who subsequently applies for a license (even though the person was not a licensee at the time of the violation) may be a basis for disapproval of the application.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000526

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER M. COMPLAINTS AND ENFORCEMENT PROVISIONS

16 TAC §§116.120 - 116.123

STATUTORY AUTHORITY

These amended and new rules are proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed rules.

§116.120.Complaints [Regarding Standard of Care].

(a) The commission has adopted rules related to handling complaints regarding standard of care pursuant to Texas Occupations Code §51.2031. These rules are located at 16 Texas Administrative Code Chapter 100.

(b) A qualified person may assist the department in the review and investigation of complaints and will be immune from liability related to these activities pursuant to Texas Occupations Code §51.252.

(c) The provisions regarding the confidentiality of complaint and disciplinary information are provided under Texas Occupations Code §51.254.

§116.121.Administrative Penalties and Sanctions.

If a person or entity violates any provision of Texas Occupations Code, Chapters 51 or 701, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 51 and 701, as applicable, and any associated rules.

§116.122.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapters 51 and 701 and any associated rules may be used to enforce Texas Occupations Code, Chapter 701 and this chapter.

§116.123.License Surrender.

Pursuant to Texas Occupations Code §701.351(b), a license issued by the department is the property of the department and shall be surrendered on demand.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000531

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER N. ENFORCEMENT PROVISIONS

16 TAC §§116.130 - 116.132

STATUTORY AUTHORITY

The repeals are proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposal are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed repeals.

§116.130.Administrative Penalties and Sanctions.

§116.131.Enforcement Authority.

§116.132.License Surrender.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000544

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


SUBCHAPTER O. THE DIETETIC PROFESSION

16 TAC §116.141, §116.142

STATUTORY AUTHORITY

These amended rules are proposed under Texas Occupations Code, Chapters 51 and 701, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51, 116, and 701. No other statutes, articles, or codes are affected by the proposed rules.

§116.141.Provider of Nutrition Services.

(a) A person licensed by the department is designated as a health care provider of nutrition services.

(b) A licensed dietitian, acting within the scope of the dietitian's [his or her] license and consistent with medical direction or authorization as provided in this section, may accept, transcribe into a patient's medical record or transmit verbal or electronically-transmitted orders, including medication orders, from a physician to other authorized health care professionals relating to the implementation or provision of medical nutrition therapy and related medical protocols for an individual patient or group of patients.

(1) In a licensed health facility, the medical direction or authorization shall be provided, as appropriate, through a physician's order, or a standing medical order, or standing delegation order, or medical protocol issued in accordance with Texas Occupations Code, Chapter 157, Subchapter A, and rules adopted by the Texas Medical Board implementing the subchapter.

(2) In a private practice setting, the medical direction or authorization shall be provided, as appropriate, through the physician's order, standing medical order, or standing delegation order of a referring physician, in accordance with Texas Occupations Code, Chapter 157, Subchapter A, and rules adopted by the Texas Medical Board implementing the subchapter.

(c) A licensed dietitian, acting within the scope of the dietitian's [his or her] license and consistent with medical direction or authorization as provided in this section, may order medical laboratory tests relating to the implementation or provision of medical nutrition therapy and related medical protocols for individual patients or groups of patients.

(1) In a licensed health facility, the medical direction or authorization shall be provided, as appropriate, through a physician's order, or a standing medical order, or standing delegation order, or medical protocol, issued in accordance with Texas Occupations Code, Chapter 157, Subchapter A, and rules adopted by the Texas Medical Board implementing the subchapter.

(2) In a private practice setting, the medical direction or authorization shall be provided through the physician's order, standing medical order, or a standing delegation order of the referring physician, in accordance with Texas Occupations Code, Chapter 157, Subchapter A, and rules adopted by the Texas Medical Board implementing the subchapter.

§116.142.Licensed Dietitians Providing Diabetes Self-Management Training.

(a) This section implements the Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.055.

(b) Diabetes self-management training covers the following training:

(1) training provided to a qualified enrollee after the initial diagnosis of diabetes in the care and management of that condition, including nutrition counseling and proper use of diabetes equipment and supplies;

(2) additional training authorized on the diagnosis of a physician or other health care practitioner of a significant change in the qualified enrollee's symptoms or condition that requires changes in the qualified enrollee's self-management regimen; and

(3) periodic or episodic continuing education training when prescribed by an appropriate health care practitioner as warranted by the development of new techniques and treatments for diabetes.

(c) A licensed dietitian who provides diabetes self-management training as a member of a multi-disciplinary team must meet the following requirements:

(1) Prior to beginning to provide diabetes self-management training as member of a multi-disciplinary team under Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.055(c)(2), a licensed dietitian must complete at least six (6) hours of continuing education in diabetes-specific or diabetes-related topics within the previous two years.

(2) Thereafter, to remain qualified to continue to provide such services, a licensed dietitian shall complete at least six (6) hours of continuing education biennially in diabetes-specific or diabetes-related topics.

(3) A licensed dietitian who is not a Certified Diabetes Educator and who is providing diabetes self-management training as a member of a multi-disciplinary team under Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.055(c)(2), shall confine the licensed dietitian's [his or her] professional services to nutrition education and/or counseling, lifestyle modifications, the application of self-management skills, reinforcing diabetes self-management training, and other acts within the scope of the licensed dietitian's [his or her] professional education and training which are conducted under the supervision of the coordinator of the multi-disciplinary team.

(d) A licensed dietitian who provides the nutrition component of diabetes self-management training must meet the following requirements:

(1) Prior to beginning to provide the nutrition component of diabetes self-management training under Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.055(c)(4), a licensed dietitian must complete at least six (6) hours of continuing education in diabetes-specific or diabetes-related topics within the previous two years.

(2) Thereafter, to remain qualified to continue to provide such services, a licensed dietitian shall show proof to the department completion of at least six (6) hours of continuing education biennially in diabetes-specific or diabetes-related topics.

(e) The continuing education completed under this section shall meet the requirements described in Subchapter I, Continuing Education. The continuing education completed under this section may be part of the credits required for renewal of a license.

(f) Upon written request by the department, the licensed dietitian shall submit to the department proof of completion of the continuing education completed under this section. The licensed dietitian shall submit the proof of completion in a manner and a timeframe acceptable to the department.

(g) This section does not apply to a licensed dietitian who is a diabetes educator certified by the National Certification Board for Diabetes Educators.

(h) This section does not pertain to or restrict a licensed dietitian who does not qualify under this section from providing the nutrition component of diabetes self-management training within the scope of the license issued by the department, to a person:

(1) who is not a qualified enrollee as defined in the Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.051;

(2) who does not intend to seek payment for or reimbursement for diabetes self-management training; or

(3) without the written order of a licensed physician or other healthcare practitioner.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000534

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

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


CHAPTER 120. LICENSED DYSLEXIA THERAPISTS AND LICENSED DYSLEXIA PRACTITIONERS

16 TAC §120.26

The Texas Department of Licensing and Regulation (Department) proposes amendments to the existing rule at 16 Texas Administrative Code (TAC), Chapter 120, §120.26, regarding the Licensed Dyslexia Therapists and Licensed Dyslexia Practitioners Program. These proposed changes are referred to as "proposed rule."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 120, implement Texas Occupations Code, Chapter 403, Licensed Dyslexia Practitioners and Licensed Dyslexia Therapists. The proposed rule is necessary to implement House Bill (HB) 2059, 86th Legislature, Regular Session (2019). HB 2059 amends the Occupations Code by adding new Chapter 116, Training Course on Human Trafficking Prevention, which requires certain health care practitioners, including licensed dyslexia therapists and licensed dyslexia practitioners, to successfully complete a training course approved by the executive commissioner of the Health and Human Services Commission (HHSC) on identifying and assisting victims of human trafficking as a condition for renewal of a license on or after September 1, 2020. The proposed rule adds proof of completion of such training to the list of items required for renewal of a licensed dyslexia therapist license and a licensed dyslexia practitioner license on or after September 1, 2020.

The proposed rule was presented to and discussed by the Dyslexia Therapists and Practitioners Advisory Committee at its meeting on January 27, 2020. The Advisory Committee did not make any changes to the proposed rules. The Advisory Committee recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rule amends §120.26, Renewal, by changing subsection (b) to include the requirement for proof of completion of the human trafficking prevention training to be submitted to the Department for renewal of a license on or after September 1, 2020. The previously-existing language in subsections (b) - (d) is transferred to subsections (c) - (e), respectively, resulting in the creation of new subsection (e).

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rule.

Mr. Couvillon has determined that for each year of the first five years the proposed rule is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rule.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rule will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be the increased education and awareness of licensees on how to identify the signs of human trafficking.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rule. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rule. For each year of the first five years the proposed rule will be in effect, the agency has determined the following:

1. The proposed rule does not create or eliminate a government program.

2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rule does not require an increase or decrease in fees paid to the agency.

5. The proposed rule does create a new regulation. The proposed rule implements a new requirement created by HB 2059 for licensed dyslexia therapists, licensed dyslexia practitioners, and certain other healthcare practitioners to complete a human trafficking prevention training course as a condition of license renewal on or after September 1, 2020.

6. The proposed rule does not expand, limit, or repeal an existing regulation.

7. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rule does not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rule and the proposed rule does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rule does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rule may be submitted to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 403, 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 proposed rule are those set forth in Texas Occupations Code, Chapters 51, 116, and 403. No other statutes, articles, or codes are affected by the proposed rule.

§120.26.Renewal.

(a) To renew a license, a license holder must:

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

(2) successfully pass a criminal history background check;

(3) complete 20 hours of continuing education required under §120.25;

(4) comply with the continuing education audit process described under §120.25, as applicable; and

(5) submit the fee required under §120.80.

(b) For each license renewal on or after September 1, 2020, the licensed dyslexia therapist and the licensed dyslexia practitioner must complete the human trafficking prevention training required under Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(c) [(b)] Each license holder is responsible for renewing the license before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification prior to the expiration date of the license, shall not excuse failure to apply for renewal or late renewal.

(d) [(c)] A person whose license has expired may late renew the license in accordance with §60.31 (relating to License Renewal Applications) and §60.83 (relating to Late Renewal Fees) of this title.

(e) [(d)] A person whose license has expired may not use the title or represent or imply that he or she has the title of "licensed dyslexia therapist" or "licensed dyslexia practitioner" and may not use any facsimile of those titles in any manner.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000503

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 436-3671


CHAPTER 121. BEHAVIOR ANALYST

16 TAC §§121.10, 121.21, 121.22, 121.26, 121.70, 121.75, 121.95

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 121, §§121.10, 121.21, 121.22, 121.26, 121.70, 121.75, and 121.95, regarding the Behavior Analysts program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 121 implement Texas Occupations Code, Chapter 506, Behavior Analysts.

The proposed rules implement §7.003 of House Bill (HB) 2847, Article 7, 86th Legislature, Regular Session (2019), which amends Texas Occupations Code Chapter 51, adding new subsection 51.252(e) regarding contracting with and providing immunity for individuals assisting in complaint investigations. The proposed rules also implement §1 of HB 2059, 86th Legislature, Regular Session (2019), which adds Chapter 116 to the Texas Occupations Code, imposing a requirement for a training course on human trafficking prevention as a condition for certain license renewals on or after September 1, 2020. The proposed rules are also necessary to implement recommendations from the Behavior Analyst Advisory Board (Advisory Board) to significantly reorganize, expand, and provide specifics for the responsibilities and ethics code of license holders, including expanding the definitions section.

The Board and staff also included specific requirements for acceptable abbreviation of license holders' titles under the Act, new and updated references to statutes and rules, editorial corrections, and rewording. The proposed rules are the first amendments of the rules following the creation of the Behavior Analyst licensing program at the Department in the 85th Legislative Session in 2017.

The Standard of Care workgroup of the Advisory Board met on May 23, July 18, and October 29 of 2018, and on September 16, 2019 to deliberate and create the rule amendments. The proposed rules were presented to and discussed by the Advisory Board at its meetings on December 6, 2018 and again on January 29, 2020. The Advisory Board made one change to the proposed rules, replacing "and" with "or" between parts (A) and (B) of the definition of "client." The Advisory Board voted and recommended that the proposed rules with this change be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §121.10 by adding definitions for "authorized representative," "multiple relationship," "service agreement," and "treatment plan," and expand the definition of "client." The section is renumbered accordingly.

The proposed rules amend §121.21 by providing for acceptable abbreviations of the licensed behavior analyst title.

The proposed rules amend §121.22 by providing for acceptable abbreviations of the licensed assistant behavior analyst title.

The proposed rules amend §121.26 by adding the new requirement for human trafficking prevention training as a condition for license renewals on or after September 1, 2020 and renumbers the section.

The proposed rules amend §121.70 by reorganizing, expanding, clarifying, and adding specificity to the responsibilities of license holders. The section is renumbered accordingly.

The proposed rules amend §121.75 by reorganizing, expanding, clarifying, and adding specificity for minimum standards of ethical practice for behavior analysis. The section is renumbered accordingly.

The proposed rules amend §121.95 by implementing Texas Occupations Code §51.252, which provides immunity for assisting in the review and investigation of complaints. The proposed rules also remove a requirement for display of the license because the requirement has been moved to §121.70. References to relevant statutes and rules are added and corrected, and the section is renumbered accordingly.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for the first five-year period the proposed rules are in effect there are no estimated additional costs or reductions in costs to the state or to local governments as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or to local governments as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect any local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit because the amendments specify more detailed professional obligations and standards for ethical behavior by license holders and require human trafficking prevention training, thus providing for more effective and efficient regulation and enhancing the public health, safety, and welfare.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. The proposed rules elaborate on existing ethical standards and professional obligations already imposed upon license holders by the certifying entity for all current license holders - the Behavior Analyst Certification Board (BACB), and by the Texas Behavior Analyst rules, adding specificity and clarity. For example, the BACB Professional and Ethical Compliance Code for Behavior Analysts requires license holders to prepare written agreements for behavior analysis services; the Texas rules specify minimum items of information to be included in those agreements. HB 2059 sets out the requirement for license holders to complete human trafficking prevention training and requires that the Health and Human Services Commission must provide at least one free option. Therefore, Mr. Couvillon anticipates that there will be no economic cost to license holders to update agreements or to otherwise comply with the proposed rule changes.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Because the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do create a new regulation. The proposed rules implement changes due to House Bill 2847 and HB 2059 and will create a new regulation (rule) requiring license holders to complete a HHSC-approved human trafficking prevention training course as a condition of license renewal. This requirement becomes effective September 1, 2020. The proposed rules add definitions, expand the license holder's responsibilities, and expand the Code of Ethics.

6. The proposed rules do not limit or repeal an existing regulation but do expand an existing professional obligation and ethical standards already imposed upon license holders by adding specificity to current requirements.

7. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Dalma Sotero, Assistant General Counsel, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 506, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 506. No other statutes, articles, or codes are affected by the proposed rules.

§121.10.Definitions.

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

(1) - (4) (No change.)

(5) Authorized representative--A person or entity that is authorized to represent the interests of the client and to perform functions including making decisions about behavior analysis services.

(6) [(5)] Behavior Analyst Certification Board (BACB)--a certifying entity for persons practicing behavior analysis.

(7) [(6)] Client--A person who is receiving behavior analysis services from a license holder for the person's own treatment purposes, or a person or entity who is not receiving behavior analysis services from a license holder for their own treatment purposes including:

(A) an authorized representative of the person receiving behavior analysis services for the person's own treatment purposes; or

(B) an individual, institution, school, school district, educational institution, agency, firm, corporation, organization, government or governmental subdivision, business trust, estate, trust, partnership, association, or any other legal entity.

(8) [(7)] Commission--The Texas Commission of Licensing and Regulation.

(9) [(8)] Department--The Texas Department of Licensing and Regulation.

(10) [(9)] Executive director--The executive director of the department.

(11) [(10)] License--A license issued under the Act authorizing a person to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.

(12) [(11)] License holder--A person who has been issued a license in accordance with the Act to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.

(13) Multiple relationship--A personal, professional, business, or other type of interaction by a license holder with a client or with a person or entity involved with the provision of behavior analysis services to a client that is not related to, or part of, the behavior analysis services.

(14) Service agreement--The signed written contract for behavior analysis services. The service agreement includes responsibilities and obligations of all parties and the scope of behavior analysis services to be provided. The service agreement may be identified by other terms including treatment agreement, Memorandum of Understanding (MOU), or Individualized Education Program (IEP).

(15) Treatment plan--The written behavior change program for an individual client. The treatment plan includes consent, objectives, procedures, documentation, regular review, and exit criteria. The treatment plan may be identified by other terms including Behavior Intervention Plan, Behavior Support Plan, Positive Behavior Support Plan, or Protocol.

§121.21.Behavior Analyst Licensing Requirements.

(a) - (c) (No change.)

(d) Persons who hold a current Texas license may use the title "licensed behavior analyst" or a reasonable abbreviation of the title that is accurate and not misleading, including "LBA," "L.B.A.," "TXLBA," or "TX. L.B.A."

§121.22.Assistant Behavior Analyst Licensing Requirements.

(a) - (c) (No change.)

(d) Persons who hold a current Texas license may use the title "licensed assistant behavior analyst" or a reasonable abbreviation of the title that is accurate and not misleading, including "LaBA," "L.a.B.A.," "TXLaBA," or "TX. L.a.B.A." The letter "a" representing the word "assistant" may not be capitalized unless the abbreviation clearly represents the word "assistant," including "Lic. Asst. BA," "TX L. Assist. B.A." or similar.

§121.26.Renewal.

(a) To renew a license, a license holder must:

(1) (No change.)

(2) submit the fee required under §121.80; [and]

(3) demonstrate completion, in a manner prescribed by the department, of human trafficking prevention training required under Texas Occupations Code, Chapter 116, for each license renewal on or after September 1, 2020; and

(4) [(3)] successfully pass a criminal history background check.

(b) - (h) (No change.)

§121.70.Responsibilities of License Holders.

(a) (No change.)

(b) Administrative Practice Responsibilities. A license holder shall:

(1) - (7) (No change.)

(8) when creating [provide a client or a minor client's parent or authorized representative with] a written agreement for services, comply with applicable professional and ethical standards and requirements including those of the license holder's certifying entity [prior to the commencement of behavior analysis services].

[(A) The agreement shall contain, at a minimum, a description of the services to be provided, goals, techniques, materials, the cost for services, payment arrangements and policies, hours, cancellation and refund policies, contact information for both parties, and the dated signatures of both parties.]

[(B) Any subsequent modifications to the agreement shall be signed and dated by both parties.]

(9) upon revision or amendment of a written agreement for services, obtain the signatures of all parties.

(10) [(9)] maintain legible and accurate records of behavior analysis services rendered. A license holder practicing in an educational setting, school, learning center, or clinic shall comply with the recordkeeping requirements of the service setting or with the retention requirements of the certifying entity, if the latter are more stringent.

(11) [(10)] maintain records for a minimum of the longer of:

(A) - (C) (No change.)

(12) [(11)] not delegate any services, functions, or responsibilities requiring professional competence to a person not competent or not properly credentialed. A license holder in private practice is responsible for the services provided by unlicensed persons employed or contracted by the license holder.

(13) [(12)] display the current original license certificate as issued by the department in the primary location of practice, if any, or in the license holder's business office, but shall not display a license that has been photographically or otherwise reproduced.

(14) carry and display a department-issued duplicate of the current license certificate or license card or an unmodified image of the department-issued license certificate or license card, as appropriate and necessary, at locations other than the primary location of practice. The license holder shall produce the current original department-issued license certificate or license card upon request.

(15) use electronic methods to create, amend, or sign documents, and accept signatures of clients on documents related to the provision of behavior analysis services, only in accordance with applicable law.

(c) Professional Services Practice Responsibilities. A license holder shall:

(1) enter into a service agreement with a client, as defined in §121.10(7), when behavior analysis services are to be provided;

(A) The services to be delivered shall be described in a service agreement and may include the following activities: consultation, assessment, training, treatment design, treatment implementation, and treatment evaluation.

(B) A treatment plan shall be created when the service agreement provides for a behavior analyst to deliver treatment to an individual.

(C) A treatment plan is not required if a behavior analyst will not deliver treatment to an individual.

(2) include in the service agreement or otherwise document and disclose to the client, as appropriate;

(A) conflicts of interest or multiple relationships that the license holder is aware of or becomes aware of, as defined in §121.10;

(B) a description of how a conflict of interest or multiple relationship will be addressed if one is discovered or disclosed;

(C) the acknowledgment of known conflicts of interest or multiple relationships and agreement to begin or to continue behavior analysis services despite them; and

(D) a reasoned justification for beginning or continuing to provide behavior analysis services if conflicts of interest or multiple relationships are acknowledged;

(3) re-evaluate treatment progress as needed and at least annually, and document the evaluation; and

(4) comply with all applicable requirements of the license holder's certifying entity including the BACB Professional and Ethical Compliance Code for Behavior Analysts when entering into service agreements and providing behavior analysis services.

(d) [(c)] If any requirement of a license holder's certifying entity differs in stringency from a requirement of the Act or the commission rules, the more stringent provision shall apply.

(e) [(d)] If any requirement of a license holder's certifying entity conflicts with a requirement of the commission rules such that the license holder cannot reasonably comply with both requirements, the license holder shall comply with the requirement of the certifying entity.

§121.75.Code of Ethics.

(a) (No change.)

(b) License holders shall comply with the following ethical standards when providing behavior analysis services. All license holders shall:

(1) comply with all provisions of the Act and this chapter, as well as any other state or federal law or rule that applies to the provision of behavior analysis services by, or the regulation of, the license holder.

(2) - (3) (No change.)

(4) accurately and truthfully represent the license holder's [his or her] education, training, credentials, and competence.

(5) - (8) (No change.)

[(9) refrain from participating in inappropriate or exploitative multiple relationships.]

(9) [(10)] not guarantee, directly or by implication, the results of any behavior analysis services, except that a reasonable statement of prognosis may be made. A license holder shall not mislead clients to expect results that cannot be predicted from reliable evidence.

(10) [(11)] obtain written consent from a client [or a minor client's parent or authorized representative ] in order to use the client's data or information for research or teaching activities.

(11) [(12)] reveal confidential or personal information about a client only with authorization unless:

(A) - (C) (No change.)

(12) [(13)] document any confidential or personal information disclosed, the person or entity to whom it was disclosed, and the justification for disclosure in the client's record if a license holder reveals such information about a client without authorization.

(13) [(14)] if requested, provide an explanation of the charges for behavior analysis services previously made on a bill or statement in writing and in plain language [provide, in plain language, a written explanation of the charges for behavior analysis services previously made on a bill or statement, upon the written request of a client or the minor client's parent or authorized representative].

(14) [(15)] if requested, accurately represent and describe any product created or recommended by the license holder that is used or will be used in providing behavior analysis services to the client.

[(16) not require the purchase by a client of any product created or produced by the license holder.]

[(17) not use his or her professional relationship with a client to promote any product for personal gain or profit, unless the license holder has disclosed to the client the nature of the license holder's personal gain or profit.]

(15) [(18)] not offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for securing or soliciting clients or patronage.

(16) [(19)] not [persistently or flagrantly] overcharge a client or third party.

(17) [(20)] not [persistently or flagrantly] over treat a client.

(18) [(21)] terminate a professional relationship when it is reasonably clear that the client is not benefitting from the services being provided or when it is reasonably clear that the client no longer needs the services.

(19) [(22)] seek to identify competent, dependable referral sources for clients and shall refer when requested or appropriate.

(20) [(23)] not sell, barter, or offer to sell or barter a license.

[(24) refrain from engaging in sexual contact, including intercourse or kissing, sexual exploitation, or therapeutic deception, with a client. Sexual contact and sexual intercourse mean the activities and behaviors described in Penal Code, §21.01. Sexual exploitation means a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. Therapeutic deception means a representation by a license holder that sexual contact with, or sexual exploitation by, the license holder is consistent with, or part of, the behavior analysis services being provided to the client.]

(21) [(25)] refrain from practicing behavior analysis if, due to illness or use of alcohol, drugs or medications, narcotics, chemicals or other substances, or from mental or physical conditions, the license holder [person] is incapable of practicing with reasonable skill and safety to clients in the provision of behavior analysis services.

(22) refrain from engaging in sexual contact, including intercourse or kissing, sexual exploitation, or therapeutic deception, with a client. Sexual contact and sexual intercourse mean the activities and behaviors described in Penal Code, §21.01. Sexual exploitation means a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. Therapeutic deception means a representation by a license holder that sexual contact with, or sexual exploitation by, the license holder is consistent with, or part of, the behavior analysis services being provided to the client.

(23) refrain from participating in inappropriate or exploitative multiple relationships. Inappropriate or exploitative multiple relationships are prohibited.

(A) Inappropriate or exploitative relationships include, but are not limited to, relationships in which:

(i) the license holder's objectivity is impaired or likely to be impaired;

(ii) the license holder's ability to provide competent services is impaired or prevented;

(iii) the relationship is or reasonably could be harmful to the well-being of a client, supervisee, employee, student, or other person involved in the provision of behavior analysis services with the license holder, including the person's emotional, psychological, physical, social, or financial well-being;

(iv) the relationship creates or could create a conflict of interest among the license holder and a client or any person or entity involved in or connected with the provision of behavior analysis services to a client, unless the conflict of interest has been addressed in accordance with §121.70(c)(2); or

(v) the license holder receives an advantage, benefit, or thing of value other than regular compensation for behavior analysis services provided.

(B) Inappropriate or exploitative relationships may include unprofessional behavior such as: deception; trickery; undue pressure or influence, including giving or acceptance of gifts; intimidation; or threats; but need not be accompanied by such behaviors to be inappropriate or exploitative.

(C) Multiple relationships, other than those related to the provision of behavior analysis services or that have been addressed in accordance with §121.70(c)(2), between the license holder and the following may be considered inappropriate or exploitative unless evidence demonstrates otherwise:

(i) client;

(ii) authorized representative of the client;

(iii) spouse or significant other of the client;

(iv) cohabitants of the client;

(v) first-degree and second-degree relatives of the client; and

(vi) persons with whom the client shares a close personal, business, or financial relationship.

(D) Except as provided in §121.70(c)(2), multiple relationships are prohibited:

(i) during the provision of behavior analysis services to the client;

(ii) for a minimum of two years after behavior analysis services have ended;

(iii) at all times after behavior analysis services have ended if behavior analysis services for the same client are reasonably expected to be requested from the license holder again; and

(iv) indefinitely until there is reasonable certainty that the potential for harm to the client is unlikely.

(c) Information used by a license holder in any advertisement or announcement shall not contain information that is false, inaccurate, misleading, incomplete, out of context, deceptive or not readily verifiable. Advertising includes, but is not limited to, any announcement of services, letterhead, business cards, commercial products, and billing statements. False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that:

(1) - (4) (No change.)

(5) makes a representation that is designed to take advantage of the fears or emotions of a [particularly susceptible type of] client; or

(6) (No change.)

§121.95.Complaints.

(a) - (b) (No change.)

[(c) A license holder shall display the license certificate as issued by the department in the primary location of practice, if any.]

(c) [(d)] A license holder shall not make any alteration on official documents issued by the department.

(d) The commission has adopted rules in Chapter 100 of this title related to handling complaints regarding standard of care pursuant to Texas Occupations Code §51.2031.

[(e) All information and materials subpoenaed or compiled by the department in connection with a complaint and investigation under this chapter are confidential in accordance with §506.202 of the Act.]

(e) A qualified person may assist the department in the review and investigation of complaints and is immune from liability related to these activities pursuant to Texas Occupations Code §51.252.

(f) Provisions regarding the confidentiality of complaint and disciplinary information under this chapter are located in Texas Occupations Code §51.254.

(g) [(f)] The department may disclose a complaint or investigation and all information and materials compiled by the department in connection with the complaint or investigation to a person's certifying entity in accordance with Texas Occupations Code §51.254 [§506.202 of the Act].

(h) [(g)] For purposes of this chapter, a health profession is a profession for which the enabling statute is located in Title 3, Texas Occupations Code, or that is determined to be a health profession under other law.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000551

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 463-3306