TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 60. PROCEDURAL RULES OF THE COMMISSION AND THE DEPARTMENT

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

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

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter K, §§60.501, 60.510, 60.512, 60.514 and 60.518; and also proposes new §60.519, concerning Procedural Rules of the Commission and the Department. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

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

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

SECTION-BY-SECTION SUMMARY

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

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

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

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

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

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

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.

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 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.

The proposed rules will allow out-of-state military spouse applicants to establish in-state residency for licenses which have a residency requirement. Currently, only three license types associated with the Property Tax Professionals Program issued by TDLR have a residency requirement. It is not expected that enough out-of-state military spouses will now apply for those three license types to have an impact on local employment. Additionally, there are currently no Space Force locations in Texas, so it is not anticipated that many of its military members or their spouses will obtain employment in Texas in the next five years.

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 establishment of a process to allow out-of-state military spouses to establish in-state residency and allowing those spouses to apply for any of the three Property Tax Professional licenses which may have previously unavailable to them because of the residency requirement. Moreover, the addition of Space Force as a branch of the United States armed forces will allow any of its military service members, veterans, or their spouses to avail themselves the licensing provisions afforded them in Subchapter K of the Chapter 60 rules in the Texas Administrative Code.

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.

There will be no fee or charge for out-of-state military spouses to establish in-state residency so there will be no economic cost to them to obtain a license with a residency requirement. Space Force military service members, veterans, and spouses who obtain an occupational license from TDLR will be required to eventually pay renewal fees for those licenses. However, those fees are no different than fees paid by other TDLR license holders and cover the agency's costs for processing renewal applications and issuing licenses.

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 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 create a new regulation by requiring a process that allows an out-of-state military spouse to establish in-state residency for the purpose of obtaining a license which has a residency requirement.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules expand a regulation by including the Space Force as a branch of the United States armed forces.

7. The proposed rules do increase or decrease the number of individuals subject to the rules' applicability. The proposed rules increase the number of individuals subject to its applicability by now including out-of-state military spouse applicants who previously could not obtain a Property Tax Professional license, and all spouses of the Space Force military service members, veterans, and their spouses who apply for TDLR-issued license.

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 electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. 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 55, 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 55. No other statutes, articles, or codes are affected by the proposed rules.

§60.501.Military Definitions.

The following words and terms, when used in this subchapter, have the following meanings.

(1) Active duty--Current full-time military service in the armed forces of the United States or active duty military service as a member of the Texas military forces, as defined by §437.001, Government Code, or similar military service of another state. The term does not include service performed exclusively for training, such as basic combat training, advanced individual training, annual training, inactive duty training, and special training periodically made available to service members.

(2) Apprenticeship or apprenticeship program--This term has the same meaning as defined by statute or rule for a specific license.

(3) Armed forces of the United States--The Army, Navy, Air Force, Space Force, Coast Guard, or Marine Corps of the United States or a reserve unit of one of those branches of the armed forces.

(4) Military service member--A person who is on active duty.

(5) Military spouse--A person who is married to a military service member.

(6) Military veteran--A person who has served on active duty and who was discharged or released from active duty.

(7) Reserve unit of the armed forces of the United States--The Army National Guard of the United States, the Air National Guard of the United States, the Army Reserve, the Navy Reserve, the Air Force Reserve, the Coast Guard Reserve, and the Marine Corps Reserve.

(8) Similar military service of another state--The state Army National Guard, state Air National Guard, or state guard.

§60.510.License Requirements for Applicants with Military Experience, Service, Training, or Education.

(a) This section implements Texas Occupations Code §§51.4013, 55.007, 55.008 [(as redesignated by Senate Bill 1307 and Senate Bill 1296, 84th Legislature, Regular Session (2015))], 55.009 [(as added by Senate Bill 807, 84th Legislature, Regular Session (2015))], and 1305.1645(a).

(b) This section applies to a "military service member" and a "military veteran" as defined under §60.501.

(c) An applicant under this section will be eligible to receive credit for verified military experience, service, training, or education in meeting the licensing requirements, other than an examination requirement, for a specific license issued by the department.

(d) If an apprenticeship is required for a license issued by the department, the department will credit verified military experience, service, training, or education that is relevant to the occupation toward the apprenticeship requirements for the license.

(e) An applicant who seeks to receive credit for verified military experience, service, training, or education must submit the following documentation:

(1) completed license application and any supporting documents associated with the specific department license; and

(2) completed Military Service Member, Military Veteran, or Military Spouse Supplemental Application and supporting documents including;

(A) copy of the military orders or documents showing proof of active duty status (for military service members);

(B) copy of the military orders or documents showing proof of veteran status (for military veterans); and

(C) copy of the military orders or documents showing the type and amount of related military experience, service, training, or education applicable to a specific license.

(f) The amount of military experience, service, training, or education, which an applicant submits for purposes of meeting the licensing requirements of a specific license, will be determined in accordance with §60.502.

(g) The applicant under this section must still take and pass any applicable examination required for obtaining a specific license.

(h) The initial license application fee and any examination fees paid to the department are waived for an applicant who meets the requirements under this section. The applicant is still responsible for paying any examination fees that are charged by a third-party examination vendor.

(i) The applicant under this section must undergo and successfully pass a criminal history background check.

(j) A military service member or military veteran who obtains a license under this section must comply with all of the license renewal requirements including fees for the specific license obtained.

§60.512.Expedited Alternative Licensing Requirements--Substantially Equivalent License.

(a) This section implements Texas Occupations Code §§55.004, 55.005, 55.006, and 55.009 [(as added by Senate Bill 807, 84th Legislature, Regular Session (2015))], as they relate to an applicant who holds a "substantially equivalent" license.

(b) This section applies to a military service member, a military veteran, and a military spouse, as defined under §60.501.

(c) An applicant under this section is eligible to obtain a license issued by the department if the applicant holds a current license issued by another jurisdiction that has licensing requirements that are substantially equivalent to the Texas licensing requirements.

(d) The department will determine whether the licensing requirements of the other jurisdiction are substantially equivalent to the Texas requirements as prescribed under §60.34.

(e) The following documentation must be submitted to apply for a license under this section:

(1) completed license application and any supporting documents associated with the specific department license;

(2) completed Military Service Member, Military Veteran, or Military Spouse Supplemental Application and supporting documents including;

(A) copy of the military orders or documents showing proof of active duty status (for military service member and military spouse);

(B) copy of the military orders or documents showing proof of veteran status (for military veteran); and

(C) copy of document showing proof of status as a military spouse (for military spouse); and

(3) copy of the applicant's current occupational license from another jurisdiction.

(f) The applicant who qualifies for a license under this section is not required to take and pass any applicable examination required for obtaining that specific license.

(g) The initial license application fees paid to the department are waived for an applicant under this section.

(h) The applicant under this section must undergo and successfully pass a criminal history background check.

(i) An application under this section shall be expedited in accordance with Texas Occupations Code §55.005.

(j) Pursuant to Texas Occupations Code §55.004(b) [(as amended by Senate Bill 1307, 84th Legislature, Regular Session (2015))], the executive director may waive any prerequisite to obtaining a license for an applicant under this section after reviewing the applicant's credentials.

[(k) Pursuant to Texas Occupations Code §55.004(c) (as amended by House Bill 3742, 84th Legislature, Regular Session (2015)), the executive director may issue a license by endorsement to an applicant under this section.]

(k) [(l)] A military service member, military veteran, or military spouse who obtains a license under this section must comply with all of the license renewal requirements including fees for the specific license obtained.

§60.514.Expedited Alternative Licensing Requirements--Previously Held Texas License.

(a) This section implements Texas Occupations Code §§55.004, 55.005, and 55.006, as they relate to an applicant who held the same Texas license within the last five years.

(b) This section applies to a military service member, a military veteran, and a military spouse, as defined under §60.501.

(c) An applicant under this section is eligible to obtain a license issued by the department if the applicant within the five years preceding the application date held the same license in Texas.

(d) The following documentation must be submitted to apply for a license under this section:

(1) completed license application and any supporting documents associated with the specific department license; and

(2) completed Military Service Member, Military Veteran, or Military Spouse Supplemental Application and supporting documents including;

(A) copy of the military orders showing proof of active duty status (for military service member and military spouse);

(B) copy of the military orders or documents showing proof of veteran status (for military veteran); and

(C) copy of document showing proof of status as a military spouse (for military spouse).

(e) The applicant who qualifies for a license under this section is not required to take and pass any applicable examination required for obtaining that specific license.

(f) An applicant under this section must pay the license application fees associated with obtaining that specific license.

(g) The applicant under this section must undergo and successfully pass a criminal history background check.

(h) An application under this section shall be expedited in accordance with Texas Occupations Code §55.005.

(i) Pursuant to Texas Occupations Code §55.004(b) [(as amended by Senate Bill 1307, 84th Legislature, Regular Session (2015))], the executive director may waive any prerequisite to obtaining a license for an applicant under this section after reviewing the applicant's credentials.

(j) Pursuant to Texas Occupations Code §55.004(c) (as amended by House Bill 3742, 84th Legislature, Regular Session (2015)), the executive director may issue a license by endorsement to an applicant under this section.]

(j) [(k)] A military service member, military veteran, or military spouse, who obtains a license under this section, must comply with all of the license renewal requirements including fees for the specific license obtained.

§60.518.Recognition of Out-of-State License of Military Spouse.

(a) This section implements Texas Occupations Code §55.0041 [(as added by Senate Bill 1200, 86th Legislature, Regular Session (2019))].

(b) This section applies to a military spouse, as defined under §60.501, who meets the requirements of Texas Occupations Code §55.0041.

(c) The notice required by Texas Occupations Code §55.0041(b)(1) must be provided by submitting the notice to the department on a completed department-approved form.

(d) The department will determine whether the licensing requirements of another jurisdiction are substantially equivalent to the licensing requirements of Texas as prescribed under §60.34.

(e) To be eligible for the confirmation described in Texas Occupations Code §55.0041(b)(3), a military spouse must provide the department with sufficient documentation to verify that the military spouse is currently licensed in another jurisdiction and has no restrictions, pending enforcement actions, or unpaid fees or penalties relating to the license.

(f) The department may not charge a fee for the authority to engage in a business or occupation, or for a three-year license, as set forth in subsections (g) and (h) [below].

(g) Authority to engage in business or occupation.

(1) An individual who receives from the department the confirmation described in Texas Occupations Code §55.0041(b)(3):

(A) may engage in the authorized business or occupation only for the period during which the individual meets the requirements of Texas Occupations Code §55.0041(d); and

(B) must immediately notify the department if the individual no longer meets the requirements of Texas Occupations Code §55.0041(d).

(2) An individual is not required to undergo a criminal history background check to be eligible for the authority granted under this subsection.

(h) Three-year license.

(1) An individual who receives from the department the confirmation described in Texas Occupations Code §55.0041(b)(3) is eligible to receive a license issued by the department if the individual:

(A) submits a completed application on a department-approved form; and

(B) undergoes and successfully passes a criminal history background check.

(2) A license issued under this subsection expires on the third anniversary of the date the department provided the confirmation described in Texas Occupations Code §55.0041(b)(3) and may not be renewed.

(i) An individual who engages in a business or occupation under the authority or license established by this section is subject to the enforcement authority granted under Texas Occupations Code, Chapter 51, this chapter, and the laws and regulations applicable to the business or occupation in Texas.

§60.519.License Eligibility--Establishing License Residency Requirement for Out-of-State Military Spouses.

(a) This section implements Texas Occupations Code §55.004(d) as it relates to a non-resident military spouse applicant to the department for a license with a residency requirement for license eligibility.

(b) This section applies to a military spouse, as defined under §60.501, that is not a resident of the State of Texas at the time of the filing of an application with the department for a license that requires residency status.

(c) A non-resident military spouse applicant under this section is eligible to obtain a license issued by the department if the applicant provides documentation sufficient to establish residency within the State of Texas.

(d) A non-resident military spouse applicant seeking to establish in-state residency to demonstrate eligibility to apply for a specific license under this section must submit the following documentation:

(1) a completed license application and supporting documents associated with the specific department license;

(2) documents sufficient to establish residency, including but not limited to, a copy of the permanent change of station order for the military service member to whom the spouse is married;

(3) documents showing proof of active duty status for the military service member; and

(4) a copy of a document showing proof of status as a military spouse.

(e) An applicant under this section must comply with all of the license requirements for the specific license obtained.

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 January 13, 2022.

TRD-202200108

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 27, 2022

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


CHAPTER 100. GENERAL PROVISIONS FOR HEALTH-RELATED PROGRAMS

The Texas Department of Licensing and Regulation (Department) proposes new rules at 16 Texas Administrative Code (TAC) Chapter 100, §§100.1 - 100.3, 100.11, 100.60 - 100.65, and 100.70 - 100.73; the repeal of existing rules at §§100.1, 100.10, 100.31 and 100.50; amendments to existing rules at §§100.20, 100.30, and 100.40; and the addition of subchapter titles to an existing chapter, regarding General Provisions for Health-Related Programs. These proposed changes are referred to as the "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

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

The proposed rules implement the provisions of Senate Bill (SB) 40, 87th Legislature, Regular Session (2021) and the provisions of Texas Occupations Code §51.501, as well as changes identified by the Department as a result of the four-year rule review process conducted under Texas Government Code §2001.39. The proposed rules are necessary to provide guidelines to health professionals for the use of telehealth and remote continuing education, update rule provisions to reflect current Department procedures, amend outdated rule language, and relocate certain podiatry-specific provisions required by Texas Occupations Code §51.2032 to the podiatry chapter. This rulemaking is accompanied by another rulemaking related to 16 TAC Chapter 130, regarding the Podiatry program.

SECTION-BY-SECTION SUMMARY

The proposed rules create new Subchapter A, General Provisions.

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

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

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

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

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

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

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

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

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

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

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

The proposed rules create new Subsection C, Telehealth.

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

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

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

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

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

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

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

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

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

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

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 also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefits will be as follows: for those health services which may be performed through telehealth, there may be a decrease or elimination of travel costs for the client associated with an in-person office visit versus receiving that same service without the need to travel to a physical office location. The proposed telehealth rules also provide guidelines for appropriate client care, privacy, and fraud prevention, which will benefit consumers of telehealth services.

For those services which may be provided at the same level of quality via telehealth as in-person, a provider could provide services to a larger number of rural clients or mobility-impaired clients, who may not currently have access to services due to the distance to the nearest provider or difficulty getting to a nearby provider's office. The proposed telehealth rules are intended to outline responsibilities of providers for these clients, to ensure they receive appropriate, quality care with privacy and security safeguards.

Licensees who choose to earn continuing education credits remotely may see an elimination of travel costs associated with traveling to in-person continuing education courses. Licensees may also be able to utilize additional sources of continuing education which were previously cost-prohibitive or inaccessible.

Continuing education course providers who offer remote continuing education courses may see a reduction in costs associated with providing large classrooms to accommodate all course attendees and a reduction in costs for course instructors through the elimination of costs associated with traveling to provide an in-person continuing education course. The ability to offer remote continuing education could also increase attendance numbers and revenue for providers who offer it.

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 have no significant economic costs to persons that are licensees, businesses, or the general public in Texas. The rules do not impose additional fees upon licensees, nor do they create requirements that would cause licensees to expend funds for equipment, technology, staff, supplies or infrastructure. A provider who wishes to expand services through the use of telehealth might need new or additional telecommunications technology if it has not already been obtained but this would be a discretionary cost and not required by the rule changes. A continuing education course provider that wishes to expand services to include remote continuing education courses might need new or additional telecommunications technology if it has not already been obtained but this would be a discretionary cost and not required by the rule changes.

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 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 create a new regulation by providing guidelines for the provision of services through telehealth.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules expand an existing regulation by authorizing continuing education to now be completed remotely, in addition to in-person, and expand an existing regulation by reinstating the requirement for the Texas Commission of Licensing and Regulation (Commission) to adopt new rules relating to scope of practice only when they have been proposed by the appropriate advisory board, which had expired by the terms of the existing rule in September 2019, although this requirement remained in statute. The proposed rules also expand regulations for enforcement procedures for certain health-related programs by referencing the statutory immunity from suit to individuals assisting the Department with reviewing or investigating complaints. The proposed rules repeal an existing regulation by removing rules specific to podiatry.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules' 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 electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

16 TAC §§100.1, 100.10, 100.31, 100.50

STATUTORY AUTHORITY

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

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

§100.1.Applicability.

§100.10.Definitions.

§100.31.Rules Regarding the Podiatric Medicine Program.

§100.50.Continuing Education Procedures for the Podiatric Medicine Program.

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 January 13, 2022.

TRD-202200098

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 27, 2022

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


SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §§100.1 - 100.3

STATUTORY AUTHORITY

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

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

§100.1.Applicability.

This chapter applies to the health-related programs regulated by the department, as specified in each of the subchapters in this chapter. The provisions of this chapter are in addition to all other statutes and rules that apply to the health-related programs, as specified in each subchapter. This chapter applies except in the event of a conflict with specific program statutes and rules.

§100.2.Definitions.

The following terms have the following meanings when used in this chapter:

(1) Advisory Board--A board, committee, council, or other body that is established by law to advise the commission or department on rules, policies, and/or technical matters.

(2) Commission--Texas Commission of Licensing and Regulation.

(3) Department--Texas Department of Licensing and Regulation.

(4) Executive Director--The head administrative official of the department.

(5) License--A license, certificate, registration, title, commission, or permit issued by the department.

(6) Penalty or Administrative Penalty--A monetary fine imposed by the commission or the executive director on a licensee or other person who has violated this chapter or a statute or rule governing a program regulated by the department.

(7) Rule--Any commission statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedure or practice requirements of the department or commission.

(8) Sanction--An action by the commission or executive director against a license holder or another person, including the denial, suspension, or revocation of a license, the reprimand of a license holder, the placement of a license holder on probation, or refusal to renew.

§100.3.Administrative Penalties and Sanctions.

(a) The department may bring an enforcement action to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Occupations Code, Chapter 51 and any associated rules if a person or entity violates any provision of Occupations Code, Chapter 51 or this chapter, or any rule or order of the executive director or commission.

(b) The department may bring an enforcement action for violation of this chapter in combination with an action for violation of any other applicable law or rule governing a program administered by the department or governing the practice of a person or entity regulated 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 January 13, 2022.

TRD-202200097

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 27, 2022

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


SUBCHAPTER B. CERTAIN HEALTH-RELATED ADVISORY BOARDS

16 TAC §§100.11, 100.20, 100.30, 100.40

STATUTORY AUTHORITY

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

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

§100.11.Applicability.

(a) This subchapter applies to programs administered by the department under the following chapters of Title 3, Occupations Code:

(1) Chapter 203 (Midwives);

(2) Chapter 401 (Speech-Language Pathologists and Audiologists);

(3) Chapter 402 (Hearing Instrument Fitters and Dispensers);

(4) Chapter 451 (Athletic Trainers);

(5) Chapter 506 (Behavior Analysts);

(6) Chapter 605 (Orthotists and Prosthetists); and

(7) Chapter 701 (Dietitians).

(b) The provisions of this subchapter are in addition to all other provisions of law or commission rules that apply to the programs in subsection (a).

§100.20.Providing Information to Advisory Boards for Certain Health-Related Programs.

(a) This section is promulgated under Occupations Code §51.2031(b) [Section 51.2031(b), Occupations Code].

(b) The department will present the following documents, including any updates or revisions, to the advisory board for its input and recommendation:

(1) The penalty matrix for the program [profession ] to be included in the department's Enforcement Plan; and

(2) Criminal Conviction Guidelines (Guidelines for Applicants with Criminal Convictions) for the program [profession].

(c) The department will provide information regarding the general investigative, enforcement, or disciplinary procedures of the department or commission to the advisory board in the following manner:

(1) At advisory board meetings, the department will provide a report on recent enforcement activities, including:

(A) a brief description of final orders entered in enforcement cases; and

(B) statistics on complaints received, disposition of cases, and any sanctions or administrative penalties assessed;

(2) On request of the advisory board, the department will provide additional information:

(A) during the staff report portion of the advisory board meeting; or

(B) by placing a discussion item on the agenda for a future advisory board meeting; or

(3) The department may provide information directly to an individual member of the advisory board in response to a request from that member.

§100.30.Rules Regarding Certain Health-Related Programs.

(a) This section is promulgated under Occupations Code §51.2031(a-1) and (a-2) [Section 51.2031(a-1) and (a-2), Occupations Code].

(b) The commission may not adopt a new rule relating to the scope of practice of or a health-related standard of care for a program [profession] to which this section applies unless the rule has been proposed by the advisory board established for that program [profession].

(c) Under Occupations Code §51.2031(a-1) and (a-2) [Section 51.2031(a-1) and (a-2), Occupations Code], the advisory board may propose a rule described by subsection (b) according to the following procedure:

(1) The advisory board, by a majority vote of the members present and voting at a meeting at which a quorum is present, shall either:

(A) recommend that the rule be published in the Texas Register for public comment; or

(B) if the rule has been published and after considering the public comments, make a recommendation to the commission concerning adoption of the rule;

(2) The rule must be within the commission's legal authority to adopt; and

(3) The department may make non-substantive, editorial changes to the rule as necessary.

(d) The commission shall either adopt the rule as proposed by the advisory board under subsection (c), with any non-substantive, editorial changes made by the department under subsection (c)(3), or return the rule to the advisory board for revision.

[(e) This section expires September 1, 2019.]

§100.40.Enforcement Procedures for Certain Health-Related Programs.

(a) This section is promulgated under Occupations Code §51.2031(b).

(b) [(a)] The department will develop procedures to incorporate health-related expertise into the department's investigation and resolution of complaints.

(c) [(b)] The department will seek input regarding the procedures developed under this section from each advisory board.

(d) [(c)] The procedures developed under this section may include obtaining health-related expertise from one or more of the following sources:

(1) A current or former member of the advisory board for the profession;

(2) A department staff expert;

(3) An outside expert with relevant education, training, or experience;

[(4) A former member of an enforcement, enforcement review, complaints, or complaint review committee for the profession at the Department of State Health Services;] or

(4) [(5)] A panel consisting of any combination of the individuals listed in paragraphs (1) - (3) [(4)].

(e) [(d)] Opinions or recommendations obtained under subsection (d) [(c)] are not binding on the department or commission.

(f) [(e)] The procedures developed under this section must include provisions to protect information that is confidential by law.

(g) Individuals assisting with reviewing or investigating complaints filed with the department are entitled to the immunity from suit provided in Occupations Code §51.252(e).

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 January 13, 2022.

TRD-202200112

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 27, 2022

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


SUBCHAPTER C. TELEHEALTH

16 TAC §§100.60 - 100.65

STATUTORY AUTHORITY

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

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

§100.60.Applicability.

(a) This subchapter applies to programs administered by the department under the following chapters of Title 3, Occupations Code:

(1) Chapter 202 (Podiatrists);

(2) Chapter 203 (Midwives);

(3) Chapter 401 (Speech-Language Pathologists and Audiologists);

(4) Chapter 402 (Hearing Instrument Fitters and Dispensers);

(5) Chapter 403 (Licensed Dyslexia Practitioners and Therapists);

(6) Chapter 451 (Athletic Trainers);

(7) Chapter 455 (Massage Therapy);

(8) Chapter 506 (Behavior Analysts);

(9) Chapter 605 (Orthotists and Prosthetists); and

(10) Chapter 701 (Dietitians).

(b) This subchapter is promulgated under Occupations Code §51.501.

(c) The provisions of this subchapter are in addition to all other provisions of law or commission rules that apply to the programs in subsection (a).

(d) To the extent that any provision of this subchapter conflicts with any provision of the laws or rules governing a program in subsection (a), the specific provision governing a program will prevail over this subchapter.

§100.61.Definitions.

The following terms have the following meanings when used in this subchapter, unless the context clearly indicates otherwise:

(1) Client--A patient, consumer, or any other person receiving care or services from a health professional.

(2) Health professional--A person holding a license issued by the department in a program listed in §100.60(a) of this chapter.

(3) In-person--The health professional is physically present with the client while performing an act or service within the health professional's scope of practice.

(4) Telehealth service--A health service delivered by a health professional acting within the scope of the health professional's license to a client at a different physical location than the health professional using telecommunications or information technology.

§100.62.License Requirement.

Unless otherwise permitted to practice under applicable law or commission rule, a person providing a telehealth service to a client located in Texas at the time the service is provided must possess the valid license type required by the department for the delivery of the applicable telehealth service, regardless of the location of the provider when delivering the telehealth service.

§100.63.Standard of Care.

A health professional providing a telehealth service is subject to the standard of care that would apply to the provision of the same health care service or procedure in an in-person setting. Nothing in this subchapter shall be interpreted to require a higher standard of care or otherwise alter the applicable standard of care governing the treatment provided by the health professional.

§100.64.Appropriate Client Care and Fraud Prevention.

(a) A health professional providing a telehealth service to a client shall ensure that the telecommunications or information technology used to provide the telehealth service is of sufficient quality to allow the health professional to meet the applicable standard of care.

(b) It is the health professional's duty to ensure the client or the client's authorized representative can provide all necessary diagnostic information and understand all communication provided during the telehealth service to meet the applicable standard of care.

(c) To ensure appropriate client care, a health professional providing a telehealth service shall:

(1) inform the client or the client's authorized representative about the capabilities and limitations of any telehealth service to be provided;

(2) ensure that informed consent is obtained if it would be required for an in-person service of the same type;

(3) allow the client or the client's authorized representative to refuse delivery of telehealth services at any time; and

(4) provide the client or the client's authorized representative with information about follow-up care if indicated by the applicable standard of care for the service provided.

(d) To prevent fraud and abuse when providing a telehealth service, a health professional shall:

(1) take reasonable steps to verify the identity of the client matches the person who is scheduled to receive the telehealth service;

(2) document a telehealth service to the same extent as would be required for an in-person service;

(3) ensure that any additional required telehealth-related documentation is maintained in accordance with the applicable laws and rules governing the practice of the health professional; and

(4) ensure appropriate protocols are in place to prevent unauthorized access to client communications and claim information.

§100.65.Client Privacy.

(a) When providing a telehealth service, a health professional shall take appropriate measures to ensure that client communications, recordings, and records are protected as required by federal and state privacy laws.

(b) A health professional is responsible for ensuring all persons acting under the supervision, direction, or delegated authority of the health professional observe federal and state privacy laws when providing a telehealth service.

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 January 13, 2022.

TRD-202200113

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 27, 2022

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


SUBCHAPTER D. REMOTE CONTINUING EDUCATION FOR HEALTH PROFESSIONALS

16 TAC §§100.70 - 100.72

STATUTORY AUTHORITY

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

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

§100.70.Applicability.

(a) This subchapter applies to programs administered by the department under the following chapters of Title 3, Occupations Code:

(1) Chapter 202 (Podiatrists);

(2) Chapter 203 (Midwives);

(3) Chapter 401 (Speech-Language Pathologists and Audiologists);

(4) Chapter 402 (Hearing Instrument Fitters and Dispensers);

(5) Chapter 403 (Licensed Dyslexia Practitioners and Therapists);

(6) Chapter 451 (Athletic Trainers);

(7) Chapter 455 (Massage Therapy);

(8) Chapter 506 (Behavior Analysts);

(9) Chapter 605 (Orthotists and Prosthetists); and

(10) Chapter 701 (Dietitians).

(b) This subchapter is promulgated under Occupations Code §51.501.

(c) The provisions of this subchapter are in addition to all other provisions of law or commission rules that apply to the programs in subsection (a).

(d) To the extent that any provision of this subchapter conflicts with any provision of the laws or rules governing a program in subsection (a), the specific provision governing a program will prevail over this subchapter.

§100.71.Definitions.

The following terms have the following meanings when used in this subchapter, unless the context clearly indicates otherwise:

(1) Health professional--A person holding a license issued by the department in a program listed in §100.70(a) of this chapter.

(2) Remote continuing education--The provision of continuing education to a health professional through the use of telecommunications or information technology.

§100.72.Remote Continuing Education for Health Professionals.

(a) A health professional may complete any continuing education requirements through remote continuing education, if permitted by applicable federal and state law and the department rules governing the health professional's licensure.

(b) A health professional who uses remote continuing education in a manner intended to falsely represent the completion of licensure requirements may be subject to disciplinary sanction, including denial or revocation of licensure.

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 January 13, 2022.

TRD-202200114

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 27, 2022

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


CHAPTER 130. PODIATRIC MEDICINE PROGRAM

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 130, Subchapter B, §130.27, and a new rule at Subchapter G, §130.75, regarding the Podiatry Program. These proposed changes are referred to as the "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 130 implement Texas Occupations Code Chapter 202, Podiatrists.

The proposed rules implement certain podiatry-specific provisions required by Texas Occupations Code §51.2032. The proposed rules are necessary to relocate these provisions from their existing locations to the chapter of Department rules specifically regulating podiatry. This rulemaking is accompanied by another rulemaking related to 16 TAC Chapter 100, regarding General Provisions for Health-Related Programs, and the reorganization of that chapter has resulted in the need for the proposed rules.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §130.27, Meetings. The proposed rules amend the title of the rule to "Advisory Board Meetings and Duties of Department." The proposed rules duplicate the provisions of existing 16 TAC §100.20, Providing Information to Advisory Boards for Certain Health-Related Programs, with minor changes to the text making it podiatry-specific. The proposed rules also relocate 16 TAC §100.31, Rules Regarding the Podiatric Medicine Program, and §100.50, Continuing Education Procedures for the Podiatric Medicine Program, to this rule section, creating new subsections and re-lettering the existing rule text accordingly. The Department's rules in Chapter 100 are being amended to remove podiatry references and §100.31 and §100.50 are being repealed in a concurrent rulemaking.

The proposed rules adopt new §130.75, Establishment of Enforcement Procedures. This new rule creates a podiatry-specific version of the text of existing 16 TAC §100.40, Enforcement Procedures for Certain Health-Related Programs.

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 also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be that the proposed rules require the Texas Commission of Licensing and Regulation (Commission) and the Department to seek out and rely on the expertise and professional knowledge of the Podiatric Medical Examiners Advisory Board members when developing the program's penalty matrix, criminal conviction guidelines and continuing education requirements, and when adopting rules relating to the scope of practice of, a health-related standard of care for, or the ethical practice of the podiatry profession. This will result in better decisions made by the Commission and Department and better policies and rules to protect the public. The proposed rules also require the Department to develop procedures to incorporate podiatry-related expertise into the Department's investigation and resolution of complaints. This will allow experts to help the Department better resolve podiatry-related complaints that could be complex, sharing their knowledge to better safeguard the public and provide proper complaint resolution for respondents.

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 have no economic costs to persons that are licensees, businesses, or the general public in Texas. The rules do not impose additional fees upon licensees, nor do they create requirements that could cause licensees to expend funds for equipment, technology, staff, supplies or infrastructure. All requirements of the proposed rules are applicable only to the Commission, the Department, and the Podiatric Medical Examiners Advisory Board.

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 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 create a new regulation by adopting §130.75, Establishment of Enforcement Procedures, requiring the Department to develop procedures to incorporate podiatry-related expertise into the Department's investigation and resolution of complaints.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules expand an existing regulation by amending §130.27, regarding the Podiatric Medical Examiners Advisory Board meetings to require the Department to present policies and guidelines for podiatry to the podiatry advisory board for input and recommendation, and present investigative, enforcement or disciplinary procedure information and statistics to the advisory board at its meetings. The amendments to §130.27 implement statutory requirements applicable to the Commission, preventing adoption of a new podiatry rule relating to scope of practice, health-related standard of care, or the ethical practice of the podiatry profession unless the rule has first been proposed by the advisory board. The amended text of §130.27 also requires the Department to establish an advisory board work group to review and make recommendations regarding continuing education requirements, and to present opinions or recommendations to the full advisory board for discussion.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules' 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 electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER B. ADVISORY BOARD

16 TAC §130.27

STATUTORY AUTHORITY

The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 202, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rule are those set forth in Texas Occupations Code, Chapters 51 and 202. No other statutes, articles, or codes are affected by the proposed rule.

§130.27.Advisory Board Meetings and Duties of Department. [Meetings.]

(a) The advisory board shall meet at the call of the presiding officer of the commission or the executive director.

(b) The department will present the following documents, including any updates or revisions, to the advisory board for its input and recommendation:

(1) The penalty matrix for podiatry to be included in the department's Enforcement Plan; and

(2) Criminal Conviction Guidelines (Guidelines for Applicants with Criminal Convictions) for podiatry.

(c) The department will provide information regarding the general investigative, enforcement, or disciplinary procedures of the department or commission to the advisory board in the following manner:

(1) At advisory board meetings, the department will provide a report on recent enforcement activities, including:

(A) a brief description of final orders entered in enforcement cases; and

(B) statistics on complaints received, disposition of cases, and any sanctions or administrative penalties assessed;

(2) On request of the advisory board, the department will provide additional information:

(A) during the staff report portion of the advisory board meeting; or

(B) by placing a discussion item on the agenda for a future advisory board meeting; or

(3) The department may provide information directly to an individual member of the advisory board in response to a request from that member.

(d) The commission may not adopt a new rule relating to the scope of practice of, a health-related standard of care for, or the ethical practice of the profession of podiatry unless the rule has been proposed by the advisory board.

(e) Under Occupations Code §51.2032(b) and (c), the advisory board may propose a rule described by subsection (d) according to the following procedure:

(1) The advisory board, by a majority vote of the members present and voting at a meeting at which a quorum is present, shall either:

(A) recommend that the rule be published in the Texas Register for public comment; or

(B) if the rule has been published and after considering the public comments, make a recommendation to the commission concerning adoption of the rule;

(2) The rule must be within the commission's legal authority to adopt; and

(3) The department may make non-substantive, editorial changes to the rule as necessary.

(f) The commission shall either adopt the rule as proposed by the advisory board under subsection (e), with any non-substantive, editorial changes made by the department under subsection (e)(3), or return the rule to the advisory board for revision.

(g) The department will establish an advisory board work group to review and make recommendations regarding continuing education requirements.

(h) The department may obtain additional expertise from one or more of the following sources:

(1) a former member of the advisory board;

(2) a department staff expert; or

(3) an outside expert with relevant education, training, or experience.

(i) Opinions or recommendations made under subsection (g) will be presented to the full advisory board for discussion.

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 January 13, 2022.

TRD-202200106

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 27, 2022

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


SUBCHAPTER G. ENFORCEMENT

16 TAC §130.75

STATUTORY AUTHORITY

The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 202, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rule are those set forth in Texas Occupations Code, Chapters 51 and 202. No other statutes, articles, or codes are affected by the proposed rule.

§130.75.Establishment of Enforcement Procedures.

(a) The department will develop procedures to incorporate podiatry-related expertise into the department's investigation and resolution of complaints.

(b) The department will seek input regarding the procedures developed under this section from the advisory board.

(c) The procedures developed under this section may include obtaining podiatry-related expertise from one or more of the following sources:

(1) A current or former member of the advisory board;

(2) A department staff expert;

(3) An outside expert with relevant education, training, or experience; or

(4) A panel consisting of any combination of the individuals listed in paragraphs (1) - (3).

(d) Opinions or recommendations obtained under subsection (c) are not binding on the department or commission.

(e) The procedures developed under this section must include provisions to protect information that is confidential by 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 January 13, 2022.

TRD-202200107

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 27, 2022

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