TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 175. FEES AND PENALTIES

22 TAC §175.1, §175.2

The Texas Medical Board (Board) proposes amendments to §175.1, concerning Application and Administrative Fees, and §175.2, concerning Registration and Renewal Fees.

A fee is proposed under §175.1 for a new Limited MRT exam authorization approval process set forth under Chapter 194 of the Texas Administrative Code.

The amendments to §175.1 and §175.2 also propose to reinstate fees for initial and renewal approval for instructor and medical radiologic technology and non-certified technician (NCT) training programs, in anticipation for approval processes to be implemented in accordance with recently adopted rules by the Texas Board of Medical Radiologic Technology (MRT Board). The amendments proposed for §175.1 and §175.2 seek to reinstate initial and renewal fees for instructor approval at $50, which is not an increase or decrease from initial approval fees required by the Department of State Health Services (DSHS). However, for both Limited MRT and NCT programs the proposed instructor approval fee represents a decrease from fees formerly imposed by DSHS, as renewal will be required every three years rather than every two (for Limited MRT programs) or annually (for NCT programs).

Proposed amendments under §175.1 would set forth a $500 fee for initial approval of limited curriculum training programs, with proposed amendments to §175.2 requiring a $500 renewal fee every three years, a decrease from $900 (for a two-year term) fee formerly in effect under DSHS. A fee of $500 is proposed under §175.1 for initial approval for NCT training programs, with a triennial renewal fee of $500 proposed under §175.2. While an increase from the $350 approval fee formerly in place under DSHS, the proposed fees will overall represent a decrease in cost for NCT training programs, as renewal of approval will be required triennially, rather than annually.

Finally, the proposed amendments to §175.1 and §175.2 repeal language setting forth obsolete fees related to a secondary permit no longer required for NCTs employed by physicians.

Scott Freshour, General Counsel for the Board, has determined that for each year of the first five years this section as proposed is in effect the public benefit anticipated as a result of enforcing this proposal will be to set forth fees reasonable and necessary to cover the costs related to implementation and ongoing administration of approval processes for MRT and NCT training program and instructors and limited MRT exam authorization processes, without the use of additional general revenue.

Mr. Freshour has also determined that for the first five-year period the sections are in effect there will be no probable economic cost to individuals required to comply with these rules as proposed.

Pursuant to Texas Government Code §2006.002, the agency provides the following economic impact statement for the proposed rule amendments and determined that for each year of the first five years the proposed amendments will be in effect:

(1) there will be no effect on small businesses, micro businesses, or rural communities; and

(2) the agency has considered alternative methods of achieving the purpose of the proposed rule amendments and found none.

Pursuant to Texas Government Code §2001.024(a)(4), Mr. Freshour certifies that this proposal has been reviewed and the agency has determined that for each year of the first five years these rule amendments, as proposed, are in effect:

(1) the additional estimated cost to the state and to local governments expected as a result of enforcing or administering the rule is none;

(2) the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the rule is none;

(3) the estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the rule is none; and

(4) there are no foreseeable implications relating to cost or revenues of the state or local governments with regard to enforcing or administering the rule.

Pursuant to Texas Government Code §2001.024(a)(6) and §2001.022, the agency has determined that for each year of the first five years the proposed amendments will be in effect, there will be no effect on local economy and no effect on local employment.

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 amendments will be in effect, Mr. Freshour 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 a decrease in future legislative appropriations to the agency.

(4) The proposed rules do require an increase in fees paid to the agency, as a new Limited MRT exam authorization fee of $15 is proposed.

(5) The proposed rules do create new regulations.

(6) The proposed rules do not expand or limit existing regulations.

(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.

Comments on the proposal may be submitted to Rita Chapin, P.O. Box 2018, Austin, Texas 78768-2018, or e-mail comments to: rules.development@tmb.state.tx.us. A public hearing will be held at a later date.

The amendments are proposed under the authority of the Texas Occupations Code Annotated, §601.054 and §601.057, which allow the board to set and collect fees in amounts that are reasonable and necessary to cover the costs of administering and enforcing Chapter 601.

No other statutes, articles or codes are affected by this proposal.

§175.1.Application and Administrative Fees.

The board shall charge the following fees for processing an application for a license or permit:

(1) Physician Licenses:

(A) Full physician license--$817.

(B) Out-of-State Telemedicine license--$817.

(C) Administrative medicine license--$817.

(D) Distinguished Professor Temporary License--$817.

(E) Conceded Eminence--$817.

(F) Reissuance of license following revocation--$817.

(G) Temporary license:

(i) State health agency--$50.

(ii) Visiting physician--$-0-.

(iii) Visiting professor--$167.

(iv) National Health Service Corps--$-0-.

(v) Faculty temporary license--$552.

(vi) Postgraduate Research Temporary License--$-0-.

(vii) Provisional license--$107.

(H) Licenses and Permits relating to Graduate Medical Education:

(i) Initial physician in training permit--$200.

(ii) Physician in training permit for program transfer--$141.

(iii) Evaluation or re-evaluation of postgraduate training program--$250.

(iv) Physician in training permit for applicants performing rotations in Texas--$131.

(I) In accordance with §554.006 of the Texas Occupations Code, for those physician license types that confer the authority to prescribe controlled substances and access the Prescription Drug Monitoring Program described by §§481.075, 481.076, and 481.0761 of the Texas Health and Safety Code, the Board shall charge an additional reasonable and necessary fee sufficient to cover the Board's responsible portion for costs related to the Texas Pharmacy Board's establishment and implementation of the drug monitoring program. The fee amount will be calculated in accordance with the Texas General Appropriations Act.

(2) Physician Assistants:

(A) Physician assistant license--$220.

(B) Reissuance of license following revocation--$220.

(C) Temporary license--$107.

(D) In accordance with §554.006 of the Texas Occupations Code, the Board shall charge an additional reasonable and necessary fee sufficient to cover the Board's responsible portion for costs related to the Texas Pharmacy Board's establishment and implementation of the Prescription Drug Monitoring Program described by §§481.075, 481.076, and 481.0761 of the Texas Health and Safety Code. The fee amount will be calculated in accordance with the Texas General Appropriations Act.

(3) Acupuncturists/Acudetox Specialists/Continuing Education Providers [Acupuncturists/AcudetoxSpecialists/Continuing Education Providers]:

(A) Acupuncture licensure--$320.

(B) Temporary license for an acupuncturist--$107.

(C) Acupuncturist distinguished professor temporary license--$50.

(D) Acudetox specialist certification--$52.

(E) Continuing acupuncture education provider--$50.

(F) Review of a continuing acupuncture education course--$25.

(G) Review of continuing acudetox acupuncture education courses--$50.

[(4) Non-Certified Radiologic Technician permit--$130.50.]

(4) [(5)] Non-Profit Health Organization initial certification--$2,500.

(5) [(6)] Surgical Assistants:

(A) Surgical assistant licensure--$315.

(B) Temporary license--$50.

(6) [(7)] Criminal History Evaluation Letter--$100.

(7) [(8)] Certifying board evaluation--$200.

(8) [(9)] Physician/Physician Assistant Jointly-Owned Entity Annual Report--$18.

(9) [(10)] Perfusionists:

(A) Application and full license--$180.[;]

(B) Application and provisional license--$180.

(10) [(11)] Respiratory Care Practitioners:

(A) Application and certificate--$125.[;]

(B) Application and temporary permit--$55.

(11) [(12)] Medical Radiologic Technologists/Non-Certified Technicians/Training Programs/Instructors[Medical Radiologic Technologist]:

(A) Application and general or limited certificate--$80.[;]

(B) Application and temporary general or limited certificate--$30.[;]

(C) [(13)] Non-certified technician [Non-Certified Radiologic Technicians:] application and placement on the General Registry--$60.[;]

(D) Training program approval application fee--$500.

(E) Training program site inspection fee--A fee equal to the board's round trip travel expenses, not to exceed $1000.

(F) Training program instructor approval application fee--$50.

(12) [(14)] Medical Physicists:

(A) Application and initial licensing fee:

(i) first specialty on initial application--$130.[;]

(ii) additional specialties on application--$50.[;]

(B) Temporary license application and temporary licensing fee:

(i) first specialty on application--$130.[;]

(ii) additional specialties on application--$50 each.

§175.2.Registration and Renewal Fees.

The board shall charge the following fees to continue licenses and permits in effect:

(1) Physician Registration Permits:

(A) Initial biennial permit--$456.

(B) Subsequent biennial permit--$452.

(C) Additional biennial registration fee for office-based anesthesia--$210.

(D) In accordance with §554.006 of the Texas Occupations Code, for those physician license types that confer the authority to prescribe controlled substances and access the Prescription Drug Monitoring Program described by §§481.075, 481.076, and 481.0761 of the Texas Health and Safety Code, the board shall charge an additional reasonable and necessary fee sufficient to cover the board's responsible portion for costs related to the Texas Pharmacy board's establishment and implementation of the drug monitoring program. The fee amount will be calculated in accordance with the Texas General Appropriations Act.

(2) Physician Assistant Registration Permits:

(A) Initial biennial permit--$541.00.

(B) Subsequent biennial permit--$537.00.

(C) In accordance with §554.006 of the Texas Occupations Code, the board shall charge an additional reasonable and necessary fee sufficient to cover the board's responsible portion for costs related to the Texas Pharmacy Board's establishment and implementation of the Prescription Drug Monitoring Program described by §§481.075, 481.076, and 481.0761 of the Texas Health and Safety Code. The fee amount will be calculated in accordance with the Texas General Appropriations Act.

(3) Acupuncturists/Acudetox Specialists Registration Permits:

(A) Initial biennial permit for acupuncturist--$671.

(B) Subsequent biennial permit for acupuncturist--$667.

(C) Annual renewal for acudetox specialist certification--$87.50.

(4) Training Program and Instructor Approval Renewal: [Non-Certified Radiologic Technician permit annual renewal--$130.50.]

(A) Training program instructor approval triennial renewal fee--$50.

(B) Training program site visit fee--A fee equal to the board's round trip travel expenses, not to exceed $1000.

(C) Training program approval triennial renewal fee--$500.

(5) Non-Profit Health Organization biennial recertification--$1,125.

(6) Surgical Assistants registration permits:

(A) Initial biennial permit--$561.

(B) Subsequent biennial permit--$557.

(7) Certifying board evaluation renewal--$200.

(8) Perfusionists - License biennial renewal--$362.

(9) Respiratory Care Practitioners - Certificate renewal--$106.

(10) Medical Radiologic Technologist - General or limited certificate biennial renewal--$66.00.

(11) Non-Certified [Radiologic] Technician - Registry biennial renewal--$56.00.

(12) Medical Physicists: License biennial renewal:

(A) First specialty--$260.

(B) Additional specialties--$50 each.

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 July 11, 2019.

TRD-201902179

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 305-7016


PART 10. TEXAS FUNERAL SERVICE COMMISSION

CHAPTER 203. LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES

SUBCHAPTER A. LICENSING

The Texas Funeral Service Commission (Commission) proposes to amend Title 22 Texas Administrative Code Part 10, Chapter 203, Subchapter A, Licensing, specifically §203.1, concerning Funeral Director and Embalmer License Requirements and Procedure; §203.3, concerning Retired/Disabled License; §203.4, concerning Reciprocal License; §203.5, concerning Provisional License; §203.8, concerning Continuing Education; §203.9, concerning Licensure of Funeral Establishments and Commercial Embalming Establishments; and §203.11, concerning Establishment Names and Advertising. The Commission also proposes to repeal §203.14, concerning State Agency Action as a Basis for License Suspension, Revocation or Denial.

BACKGROUND AND JUSTIFICATION. The Commission announced its intent to review its rules in accordance with Texas Government Code, §2001.039 in January and published notice in the Texas Register on April 19, 2019 (44 TexReg 2064). The agency held five meetings with stakeholders during its review period. The Commission has determined the reasons for initially adopting the rules in Title 22, Part 10, Chapter 203, Subchapter A continue to exist. However, changes to the following rules are necessary to comply with statutory changes made during the 86th Legislative Session in HB 1540, as directed by the Texas Sunset Advisory Commission, and as requested by stakeholders to clarify the rules.

§203.1, Funeral Director and Embalmer License Requirements and Procedure.

The changes would clarify a licensee can renew a license up to 60 days prior to his/her expiration date and would provide the Executive Director could waive licensing requirements for certain military applicants under Tex. Occ. Code Chapter 55.

§203.3, Retired/Disabled License.

The changes would remove language requiring certain applicants to take continuing education to conform to §203.8 and would provide in rule the fee for these licenses is one-half the amount of an active license.

§203.4, Reciprocal License.

The changes conform the rule to updates to Tex. Occ. Code 651.259 related to how and why the agency reviews criminal histories on out-of-state applicants and conforms the review to §203.8. Additionally, the changes would provide the Executive Director could waive licensing requirements for certain military reciprocal applicants under Tex. Occ. Code Chapter 55.

§203.5, Provisional License.

The changes would clarify how a person who is no longer officially enrolled in school but not yet a certified graduate could continue to hold a license. The changes would clarify that a licensee who entered the provisional program on an education waiver would only get additional months added to the 24-month maximum term for those months he/she was not enrolled in classes. The changes would clarify an applicant would only have to take the applicable examinations required by law based on the type of license being sought, and would clarify persons who submit to a criminal background check but fail to submit an application within 6 months may be required to re-submit to a subsequent criminal background check.

§203.8, Continuing Education.

The changes would (1) allow the Commission to accept continuing education courses approved by the Academy of Professional Funeral Service Providers in lieu of agency review and approval as the Academy has more expertise in course approval; (2) provide the certificate of attendance must include whether the course was online or in person; (3) require all active licensees to take 16 hours of continuing education regardless of where they practice; (4) exempt persons in retired or disabled status from continuing education; (5) remove language stating it is the licensee's responsibility to track continuing education hours; (6) update mandatory continuing education on law to include content on Health & Safety Code Chapter 716, (7) remove content related to Health & Safety Code Chapter 715 from mandatory Vital Statistics continuing education; (8) require four of the 16 required continuing education hours to be taken in person; (9) remove the use of college courses as continuing education; (10) clarify instructors of continuing education could get two hours of continuing education per course; (11) provide licensees who supervise provisional licensees could earn 8 hours of continuing education, up from 4; (12) remove language allowing licensees not practicing in the state to complete only the mandatory continuing education; (13) remove language requiring retired, active/disabled, active licensees to take 10 hours of continuing education; (14) eliminate the ability to carry-over continuing education hours from one renewal period to another; (15) remove authority to pay non-compliance fee instead of taking continuing education; and (16) renumber language regarding continuing education requirements for military licensees without making any substantive changes.

§203.9, Licensure of Funeral Establishments and Commercial Embalming Establishments.

The changes would require forms submitted during the establishment application process to have a placeholder to insert license number (when issued); and would authorize the agency to cancel an establishment license if the renewal is not received within 90 days after the expiration date. The amendment also would require an applicant for a new funeral establishment to have paid all outstanding penalties, including all payments under a payment plan, before a new license will be issued.

§203.11, Establishment Names and Advertising.

The changes would require an establishment to include the establishment's license number on the establishment's website's contact page and would remove references to cemeteries from the rule as the Commission no longer has authority to regulate cemeteries.

§203.14, State Agency Action as a Basis for License Suspension, Revocation or Denial - The rule is proposed for repeal as the agency has determined it cannot take action under the rule until the agency first takes action under its enforcement process.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: Janice McCoy, Executive Director, has determined for the first five-year period the amendments and repeal are in effect there will be no fiscal implication for local governments, or local economies and no state fiscal impact.

PUBLIC BENEFIT/COST NOTE. Ms. McCoy has determined that, for each year of the first five years the proposed amendments and repeal will be in effect, the public benefit is that the agency's rules are in compliance with Texas Occupations Code Chapter 651. There will not be any economic cost to any individuals required to comply with the proposed amendments and there is no anticipated negative impact on local employment because the rules only further define and clarify statute.

ADVERSE IMPACT ON SMALL OR MICRO-BUSINESSES OR RURAL COMMUNITIES. Ms. McCoy has determined that there will be no adverse economic effect on small or micro-businesses or rural communities because there are no costs on individuals due to the amendments and repeal. As a result, the preparation of an economic impact statement and regulatory flexibility analysis as provided by Government Code §2006.002 are not required.

GOVERNMENT GROWTH IMPACT STATEMENT. Ms. McCoy also has determined that for the first five years the amendments and repeal would be in effect: 1. The proposed amendments and repeal do not create or eliminate a government program; 2. The proposed amendments and repeal will not require a change in the number of employees of the agency; 3. The proposed amendments and repeal will not require additional future legislative appropriations; 4. The proposed amendments and repeal will not require an increase in fees paid to the agency; 5. The proposed amendments and repeal will not create a new regulation; 6. The proposed amendments will not expand or limit an existing regulation; however, §203.14 is being repealed; 7. The proposed amendments and repeal will not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed amendments and repeal will neither positively nor negatively affect this state's economy.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT. Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c). The proposed amendments and repeal do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government and no new fee is imposed. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

TAKINGS IMPACT ASSESSMENT: Ms. McCoy has determined Chapter 2007 of the Texas Government Code does not apply to this proposal because it affects no private real property interests. Accordingly, the Agency is not required to complete a takings impact assessment regarding this proposal.

ENVIRONMENTAL RULE ANALYSIS: Ms. McCoy has determined this proposal is not brought with the specific intent to protect the environment to reduce risks to human health from environmental exposure and asserts this proposal is not a major environmental Rule as defined by Government Code §2001.0225. As a result, an environmental impact analysis is not required.

PUBLIC COMMENT: Comments on the proposal may be submitted in writing to Mr. Kyle Smith at 333 Guadalupe Suite 2-110, Austin, Texas 78701, (512) 479-5064 (fax) or electronically to info@tfsc.texas.gov. Comments must be received no later than thirty (30) days after the date of publication of this proposal in the Texas Register.

22 TAC §§203.1, 203.3 - 203.5, 203.8, 203.9, 203.11

This proposal is made pursuant to Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, and Texas Occupations Code §651.165, which authorizes the Commission to renew licenses; Texas Occupations Code §§651.255-651.256, which outlines exams required to be licensed as a funeral director or embalmer; Texas Occupations Code §651.259, which authorizes the Commission to reciprocate licenses from other states; Texas Occupations Code §651.265, which authorizes the Commission to renew licenses in active/inactive status; §651.266, which authorizes the Commission to adopt rules related to continuing education; Texas Occupations Code §651.3045, which authorizes the Commission to offer education waivers to certain applicants; and Texas Occupations Code Chapter 55, which outlines requirements for occupational licensing of military members, veterans and spouses.

No other statutes, articles, or codes are affected by this rulemaking action.

§203.1.Funeral Director and Embalmer License Requirements and Procedure.

(a) A person may not engage in funeral directing or embalming in this state without holding a license issued by the Commission, unless the person is a mortuary student acting under the supervision and direction of a licensed funeral director or embalmer.

(b) An applicant for a license shall meet the eligibility requirements of Occupations Code, §651.253.

(c) The period of a license is two years beginning on the first day of the licensee's birth month. The initial licensing period may be less than two years.

(d) The licensing fee must be paid before a license is issued. If the initial licensing period is less than two years, the licensing fee shall be prorated.

(e) A person who does not receive a full license by exiting directly from the Commission's provisional license program or reciprocate from another state may apply for full licensure. The person must have been a provisional license holder in Texas no more than 24 months prior to application. The applicant shall complete an application, provide required proof of eligibility, pay an application fee, re-take and pass the State Mortuary Law Examination, and submit to a criminal background check.

(f) Renewal Procedures and Conditions.

(1) A license may be renewed beginning 60 days prior to its expiration if the licensee has paid the renewal fee and met the continuing education requirements of §203.8 of this title(relating to Continuing Education).

(2) A person whose license is expired for 90 days or less[,] may renew the license by meeting the continuing education requirements of §203.8 of this title and paying a renewal fee that is 1 and 1/2 times the amount of the normal renewal fee.

(3) A person whose license is expired for more than 90 days but less than one year may renew the license by meeting the continuing education requirements of §203.8 of this title and paying a renewal fee that is two times the amount of the normal renewal fee.

(4) A person whose license has been expired for one year or more may reinstate the license by meeting the following requirements:

(A) retaking and passing the State Mortuary Law Examination;

(B) payment of any applicable fees, including a renewal fee that is equal to two times the normally required renewal fee; and

(C) completion of the continuing education requirements of §203.8 of this title.

(5) Notwithstanding paragraph (4) of this subsection [section], a person whose license has been expired for one year or more may reinstate the license without retaking the applicable examination if the person has been licensed and practicing in another state for the two years preceding the application for reinstatement. The applicant must pay a renewal fee that is equal to two times the normally required renewal fee.

(6) Nothwithstanding paragraph (4) of this subsection, the Executive Director may waive any pre-requisite to obtaining a license to a person whose license has been expired for no more than five years who is also a military service member, military veteran or military spouse as defined by Occupations Code, Chapter 55.

(g) A licensee serving as an active military service member as defined by Occupations Code, Chapter 55, is exempt from the payment of license fees for the duration of the holder's military service or for anytime the Commission considers advisable.

§203.3.Retired/Disabled License.

(a) At the time of license renewal, any licensed Funeral Director, Embalmer or dual licensee aged 65 or older will be placed in a Retired, Active status. Upon written application to the Commission, a licensee may be placed in a Retired, Inactive status.

(b) Upon written application to the Commission, any licensed Funeral Director, Embalmer or dual licensee with a disability of 75% or greater will be placed in a Disabled, Active or Disabled, Inactive status. Proof of disability will be required at the time of the application. If the Commission questions the validity of the certification, a certification from a second source may be required. Submission of required documentation does not imply a guarantee of acceptance of documentation or approval of the application.

(c) Any individual holding an inactive license will be subject to disciplinary action if the individual performs any act of funeral directing and/or embalming.

(d) Any individual holding an inactive license may convert at any time to either a Retired, Active or Disabled, Active license upon written notification to the Commission and[, ] payment of applicable licensing fees, and meeting the continuing education requirements of §203.8 of this title.

(e) The fee for Retired, Active or Disabled, Active status is one-half the amount of the license renewal fee charged for active status.

§203.4.Reciprocal License.

(a) A person who holds a funeral director's license or an embalmer's license issued by another state, country or territory may reciprocate the license with the Commission.

(b) Any applicant for a license under this section shall file a sworn application. The application must include the following information:

(1) a statement the applicant is the person who holds the license and[,] the applicant's license is current and in good standing[, and no criminal prosecution is pending against the applicant];

(2) an affidavit made by the governmental entity or a registration officer of the state, country or territory that issued the license that verifies the license is active and the qualifications provided by the applicant are correct;

(3) a copy of a certified transcript showing the applicant graduated from an accredited college of mortuary science; and

(4) any other requirements necessary for licensure under Occupations Code §651.253.

(c) An applicant under this section must show that the applicant has practiced for at least:

(1) one year in a state with license requirements similar to those of the Commission; or

(2) five years in a state that does not have license requirements similar to those of the Commission.

(d) All applicants under this section shall sit for the State Mortuary Law Examination administered by the Commission. A passing score of at least 75% is required.

(e) Each applicant shall submit to a criminal background check. An applicant is subject to the standards outlined by §203.16 of this title (relating to Consequences of Criminal Conviction) [not eligible for a license under this section if the applicant has, in the 10 years preceding the date of the application, been finally convicted of a misdemeanor involving moral turpitude or a felony].

(f) The Executive Director shall waive licensure requirements under Occupations Code §651.253, if the applicant meets the licensure term under subsection (c)(1) of this section. The Executive Director may waive licensure requirements under Occupations Code §651.253, if the applicant meets the licensure term under subsection (c)(2) of this section.

(g) The applicant shall pay a license fee in an amount set by the Commission.

(h) The executive director may waive any prerequisite to obtaining a license under this section for an applicant who is licensed in a state with substantially equivalent licensing requirements and who is a military service member, military veteran, or military spouse as defined by Occupations Code Chapter 55.

§203.5.Provisional License.

(a) An applicant for a provisional license must meet the eligibility requirements of Occupations Code, §651.302 and shall submit to a criminal background check. Upon written application, the Commission shall waive the requirements of Occupations Code, §651.302(a)(2) and (b)(2) for a period not to exceed 12 months to an applicant who is otherwise qualified. This education waiver may be granted only to a person who has never held a provisional license issued by the Commission.

(b) An applicant who is enrolled in an accredited mortuary college must have the college forward a letter of enrollment prior to a provisional license being issued. A provisional license holder who was granted an education waiver under Occupations Code §651.302(c) must have the college forward a letter of enrollment prior to a provisional license being renewed. An applicant or a provisional license holder who has completed coursework but is not a certified graduate may [continue to] hold a provisional license if the person has the college forward a letter stating the person has filed for graduation and provide an expected graduation date within 3 months.

(c) If a school or college or mortuary science loses its accreditation, a student who is enrolled and actively attending classes related to mortuary science will be considered to have graduated from an accredited school or college of mortuary science for the purpose of complying with Occupations Code §651.253, if the student graduates within 12 months of the loss of accreditation.

(d) A provisional license holder may work only in a funeral establishment or commercial embalming establishment licensed by the Commission. All work must be performed under the direct and personal supervision of a duly licensed funeral director or embalmer, depending on the provisional license.

(e) The provisional funeral director program may not be served in a commercial embalming establishment.

(f) A provisional license holder must maintain employment with a funeral establishment or commercial embalming establishment, as applicable, throughout the provisional license period. A provisional license holder must notify the Commission where he/she is employed and if he/she changes employer. If the license holder is not employed, the Commission will cancel the provisional license.

(g) A provisional license is valid for a term of 12 consecutive months. If a provisional license holder fails to complete the license requirements in the 12 month license period, the holder's license may be renewed for an additional 12 months, for a maximum term of 24 months.

(h) Notwithstanding subsection (g) of this section, if a provisional license holder who was granted an education waiver under Occupations Code §651.302(c) fails to complete the license requirements in the maximum 24 [12] month license period, the holder's license may be renewed for up to an additional 12 months [up to two times], for a maximum term of 36 months. The license will be extended only for the number of months the provisional license holder was not enrolled in mortuary school.

(i) Fees will not be refunded to a provisional license holder who fails to complete the program.

(j) The Commission shall exit a provisional license holder from the program at any time during the license term if the license holder shows he/she has met the eligibility requirements of Occupations Code §651.253.

(k) Upon the completion of the provisional license program, the provisional license holder shall submit the Commission promulgated Exit Application and all required documentation to the Commission. The Commission shall verify the information received to ensure the provisional licensee has met all requirements. All information submitted is subject to inspection.

(l) Once the Commission confirms licensing requirements have been met, the Commission shall issue to the provisional license holder a written affidavit to be executed by the Funeral Director in Charge or the Embalmer in Charge, as applicable, which attests to the proficiency of the provisional license holder.

(m) Prior to issuing a regular license, the Commission must receive the affidavit described by subsection (1) of this section and the fees required for regular licensure.

(n) Examination Requirements.

(1) An applicant for full licensure as a funeral director from the certificate program must pass the Texas State Board Examination as described in Occupations Code, §651.255.

(2) An applicant for full licensure who holds an Associate of Applied Science degree is required to pass either or both of the examinations as described in Occupations Code, §§651.255 - 651.256, depending on the license type being sought.

(3) Prior to being issued a provisional license, an applicant must pass the State Mortuary Law Examination administered by the Commission. If a person fails to submit an application for licensure within 6 months of taking the Mortuary Law Examination, the score is invalidated and the person must retake and pass the exam prior to licensure.

(4) A passing score of at least 75% is required for each examination described in paragraphs (1) - (3) of this subsection.

(o) A person who fails to submit an application within 6 months after submitting to a criminal background check may be required to submit to a subsequent background check.

§203.8.Continuing Education.

(a) Each person holding an active license and practicing as a funeral director or embalmer in this state is required to participate in continuing education as a condition of license renewal.

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

(1) Approved provider--Any person or organization conducting or sponsoring a specific program of instruction that has been approved by the Commission.

(2) Approved program--A continuing education program activity that has been approved by the Commission. The program shall contribute to the advancement, extension, and enhancement of the professional skills and knowledge of the licensee in the practice of funeral directing and embalming by providing information relative to the funeral service industry and be open to all licensees.

(3) Hour of continuing education--A 50 minute clock hour completed by a licensee in attendance at an approved continuing education program.

(c) Approval of continuing education providers.

(1) A person or entity seeking approval as a continuing education provider shall file a completed application on a form provided by the Commission and include the continuing education provider fee and the fee for each course submitted. Governmental agencies are exempt from paying this fee.

(2) National or state funeral industry professional organizations may apply for approval of seminars or other courses of study given during a convention.

(3) An application for approval must be accompanied by a syllabus for each course to be offered which specifies the course objectives, course content and teaching methods to be used, and the number of credit hours each course is requesting to be granted, and a resume and description of the instructor's qualifications.

(4) A provider is not approved until the Commission accepts the application and issues a Provider Number for the provider and a course number for each course offered under that Provider Number. The Commission may refuse to approve a provider's application for any valid reason, as determined by the Commission.

(5) A Provider Number and course number are valid for one year, expiring on December 31st of each year, regardless of when the number was granted.

(6) The Commission may approve courses that have been approved by the Academy of Professional Funeral Service Practice, Inc. (APFSP). A provider submitting such a course would not need to submit the materials required under subsection (c)(3) of this section unless requested by the Commission.

(d) Responsibilities of approved providers.

(1) The provider shall verify attendance at each program and provide a certificate of attendance to each attendee. The certificate of attendance shall contain:

(A) the name of the provider and approval number;

(B) the name of the participant;

(C) the title of the course or program, including the course or program number;

(D) the number of credit hours given;

(E) the date and place the course was held;

(F) the signature of the provider or provider's representative; [and]

(G) the signature of the attendee; and[,]

(H) if the course was in-person or on-line.

(2) The provider shall provide a mechanism for evaluation of the program by the participants, to be completed at the time the program concludes.

(3) The provider shall maintain the attendance records and evaluations for a minimum of two years after the course is presented. A copy of the evaluations and/or attendance roster shall be submitted to the Commission upon request.

(4) The provider shall be responsible for ensuring that no licensee receives continuing education credit for time not actually spent attending the program.

(5) The Commission may monitor any continuing education course with or without prior notice.

(e) Credit hours required.

(1) Licensed funeral directors and embalmers who actively practice in this state are required to obtain 16 hours of continuing education every two-year renewal period. A licensee may receive credit for a course only once during a renewal period.

(2) Persons in Retired or Disabled status are exempt from continuing education.

(3) Persons in an active military status are eligible for exemption from the continuing education requirements, upon request. A copy of the active duty orders must be included in the request. Upon release from active duty and return to residency in the state, the individual shall meet the continuing education requirements before the next renewal period after the release and return.

(f) The following are mandatory continuing education hours and subjects for each renewal period:

(1) [(A)] Ethics--two credit hours--this course must at least cover principles [principals ] of right and wrong, the philosophy of morals, and standards of professional behavior.

(2) [(B)] Law Updates--two credit hours--this course must at least cover the most current versions of Occupations Code Chapter 651, Health and Safety Code Chapter 716, and the Rules of the Commission.

(3) [(C)] Vital Statistics Requirements and Regulations--two credit hours--this course must at least cover Health and Safety Code Chapters 193, 711, [- 715], and Tex. Admin. Code, Title 25, Chapter 181.

[(3) It is the responsibility of the licensee to track the number of hours accumulated during a licensing period.]

(g) Of the 16 hours of continuing education, four hours must be taken in-person. The remaining 12 hours may be taken through Internet/online presentation with a maximum of two hours per course.

(h) [(f)] The Commission will grant the following credit hours toward the continuing education requirements for license renewal. The credit hours outlined in this section are eligible to be counted toward the four hours of required in-person continuing education.

(1) [One credit hour is given for each hour of participation, except in accredited college courses taken for school credit. Such college courses will be evaluated by the Commission on an individual basis for a certification fee set by the Commission. College hour credit does not count toward the mandatory continuing education outlined in subsection (e)(2) of this section.]

[(2)] A person is eligible for a maximum of eight [five] credit hours per renewal period for provisional licensee supervision, regardless of the number of provisional licensees supervised.

(2) [(3)] A presenter or instructor of approved continuing education is eligible for a maximum of two [five] credit hours per renewal period per course for instruction, regardless of the number of times the course is presented.

[(4) All required hours may be obtained through independent study, including home study or Internet presentation with a maximum of three hours credit per course.]

(3) [(5)]A person is eligible for a maximum of four credit hours per renewal period for attendance at Commission meetings, provided the licensee signs in and is present during the entirety of the meeting.

(i) [(g)] Exemptions [, waivers, reactivation, and conversion].

(1) An individual whose renewal date is 12 months or less following initial licensure is not required to obtain continuing education hours prior to renewal of the license. An individual whose renewal date is more than 12 months following first licensure is required to complete the mandatory continuing education outlined in subsection (f) [(e)(2)] of this section.

(2) [Individuals licensed in Texas, but not practicing in the state, are required to obtain the mandatory continuing education outlined in subsection (e)(2) of this section. Any individual who returns to practice in this state shall, before the next license renewal period, meet the continuing education requirements before resuming any funeral directing and/or embalming activities in the state.]

[(3) Persons in Retired, Inactive or Disabled, Inactive status are exempt from continuing education requirements.]

[(4) Persons in Retired, Active or Disabled, Active status are required to obtain 10 hours of continuing education, including the mandatory continuing education outlined in subsection (e)(2) of this section.]

[(5) Persons converting from an inactive status to a Retired, Active or Disabled, Active status shall obtain the continuing education hours required in paragraph (4) of this subsection.]

[(6) Persons in an active military status are eligible for exemption from the continuing education requirements, upon request. A copy of the active duty orders must be included in the request. Upon release from active duty and return to residency in the state, the individual shall meet the continuing education requirements before the next renewal period after the release and return.]

[(7) The Commission may allow a licensee to carry over to the next renewal period up to 10 credit hours earned in excess of the continuing education renewal requirements, except for the mandatory continuing education outlined in subsection (e)(2) of this section.]

[(8)] The Executive Director may authorize full or partial hardship exemptions from the requirements of this section based on personal or family circumstances and may require documentation of such circumstances.

(A) The hardship request must be submitted in writing at least 30 days prior to the expiration of the license.

(B) Hardship exemptions will not be granted for consecutive licensing periods.

(j) [(h) Failure to comply.]

[(1)] The Commission will not renew the license of an individual who fails to obtain the required 16 hours of continuing education [except as provided by paragraph (2) of this subsection].

[(2) A noncompliance fee must be paid before a license is eligible for renewal if the individual has not obtained the required 16 hours of continuing education.]

[(A) The noncompliance fee may only be used in lieu of obtaining the required continuing education for every other biennial renewal period.]

[(B) The noncompliance fee and allowance for every other renewal period does not eliminate the necessity of obtaining the mandatory continuing education outlined in subsection (e)(2) of this section.]

(k) [(i)] Any licensee receiving or submitting for credit continuing education hours in a fraudulent manner shall be required to obtain all continuing education on site and not online for two consecutive renewal periods and shall be subject to any applicable disciplinary action.

§203.9.Licensure of Funeral Establishments and Commercial Embalming Establishments.

(a) New License Applications.

(1) Applications for licensure must be submitted on forms developed by the Commission. Applications shall be accompanied by applicable licensing fees, purchase agreement forms, all price lists, and embalming case report forms to be used, if applicable, which reflect the establishment's name and provide a placeholder for the establishment's license number.

(2) The passage of an inspection is mandatory for a new establishment seeking its initial licensure and for previously licensed establishments that have changed physical location.

(3) The license shall be issued to the establishment's owner.

(4) A change of name or physical address requires the submission of a new establishment license application.

(5) A new license will not be issued unless all fees have been paid. Prior to a new license being issued under paragraph [subsection] (4) of this subsection [section], any outstanding penalties of the previous establishment[, if any,] must be paid unless [or the Commission must be in possession of evidence that the applicant is current on a payment plan or that] the penalties are the subject of an administrative hearing or judicial review.

(6) A license expires on the last day of the month 12 months from the date of issue.

(b) Renewal Applications

(1) The renewal period of a license is 12 months.

(2) A late renewal fee will be assessed for an application for renewal which has been postmarked after its renewal date.

(3) Establishments may be inspected upon the submission of a renewal application.

(4) A renewal license will not be issued unless all fees and outstanding penalties, if any, have been paid or the Commission's records reflect that the applicant is current on a payment plan or that penalties previously assessed are the subject of an administrative hearing or judicial review.

(5) The Commission may investigate any circumstances involved with the renewal of any license as provided for in Occupations Code Chapter 651.

(6) A license will be cancelled if the application for renewal is not received within 90 days of the expiration date of the license.

(c) A funeral establishment or commercial embalming facility may effect a change of ownership by either submitting a new license application under subsection (a) of this section or by notifying the Commission, on a form prescribed by the Commission, within 30 days. In submitting the form, the new owner must attest to the information contained on the form and must submit any documentation required by the Commission. The Commission may assess a fee to accompany the form attesting to the ownership fee. The fee may not exceed half the cost of applying for a new establishment license.

(d) The Commission may refuse to issue a new license or to renew an outstanding license or may revoke an establishment's license if it determines that the license application or the change of ownership affidavit contains materially false information or that a person whose individual license to practice funeral directing or embalming is currently suspended or revoked owns the establishment or an interest in the establishment.

§203.11.Establishment Names and Advertising.

(a) Each application for licensure shall contain the name to be used on the license.

(b) Upon receiving an application for a new establishment license, the Commission shall review establishment names in its database. The Commission shall issue the license in the requested name when all licensing requirements are satisfied, unless the Commission determines that the name is deceptively or substantially similar to the name of another licensed establishment in the same county, metropolitan area, municipality, or service area. In these instances, the Executive Director shall deny a license for a name that is deceptively or substantially similar to the name of another establishment, unless that establishment agrees in writing to the name's use.

(c) An establishment's licensed name may be changed by following the procedure outlined in §203.9 of this title (relating to Licensure of Funeral Establishments and Commercial Embalming Establishments) and by satisfying the requirements of subsection (b) of this section.

(d) An applicant for approval of a new or changed name may appeal the Executive Director's denial of the request to the Commissioners. The Commissioners' decision is final.

(e) All advertising on a website controlled by an entity licensed by the Commission must operate as follows:

(1) The licensed name of the entity, or a registered trademark or registered trade name belonging to the licensed entity and the establishment's license number must appear on the contact information page.

(2) Irrespective of the name on the website, provisions must be made on the website so that an individual who wishes to enter into a funeral-related transaction must not be able to complete such a transaction without openly and apparently dealing with the licensed entity under the licensed name as reflected in the records of the Commission.

(3) All locations advertised shall be licensed by the Commission.

(f) No funeral establishment, commercial embalming establishment, or crematory [, or cemetery] shall advertise in a manner which is false, misleading, or deceptive.

(g) A cremation society's website and any advertising shall be linked with a licensed funeral establishment or licensed crematory establishment. The licensed funeral establishment and its location shall be provided on the website or advertising.

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 July 10, 2019.

TRD-201902164

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-2469


22 TAC §203.14

The repeal is proposed pursuant to Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, and Texas Occupations Code §651.165, which authorizes the Commission to renew licenses; Texas Occupations Code §§651.255 - 651.256, which outlines exams required to be licensed as a funeral director or embalmer; Texas Occupations Code §651.259, which authorizes the Commission to reciprocate licenses from other states; Texas Occupations Code §651.265, which authorizes the Commission to renew licenses in active/inactive status; §651.266, which authorizes the Commission to adopt rules related to continuing education; Texas Occupations Code §651.3045, which authorizes the Commission to offer education waivers to certain applicants; and Texas Occupations Code Chapter 55, which outlines requirements for occupational licensing of military members, veterans and spouses.

No other statutes, articles, or codes are affected by this section.

§203.14.State Agency Action as a Basis for License Suspension, Revocation or Denial.

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 July 12, 2019.

TRD-201902193

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-2469


SUBCHAPTER B. DUTIES OF A FUNERAL ESTABLISHMENT/LICENSEE

22 TAC §§203.24, 203.26, 203.27, 203.31 - 203.33, 203.35

The Texas Funeral Service Commission (Commission) proposes to amend Title 22 Texas Administrative Code Part 10, Chapter 203, Subchapter B - Duties of a Funeral Establishment/Licensee, specifically rules §203.24 - Display of License; §203.26 - Presentation of Consumer Brochure; §203.27 - Identification of Person Responsible for Making Arrangements; §203.31 - Facilities Necessary in a Preparation Room; §203.32 - Requirements Relating to Embalming; §203.33 - Required Documentation for Embalming; Rule §203.35 - Location of Retained Records.

BACKGROUND AND JUSTIFICATION. The Commission announced its intent to review its rules in accordance with Texas Government Code, §2001.039 in January 2019 and published notice in the Texas Register on April 19, 2019 (44 TexReg 2064). The agency held five meetings with stakeholders during its review period. The Commission has determined the reasons for initially adopting the rules in Title 22, Part 10, Chapter 203, Subchapter B continue to exist. However, changes to the following rules are necessary to comply with statutory changes made during the 86th Legislative Session, 2019, in HB 1540, as directed by the Texas Sunset Advisory Commission, or as requested by stakeholders to clarify the rules.

Rule §203.24, Display of License -- Changes to the rule would require the licenses on display at a funeral establishment be current (not expired); clarify that the licenses of temporary employees could be copies and do not have to be displayed; and clarify copies of licenses for both regular full time and regular part time employees no longer employed must be kept at the establishment for two years after employment ends.

Rule §203.26, Presentation of Consumer Brochure - The changes would eliminate language requiring an establishment to purchase the consumer brochure from the Commission.

Rule §203.27, Identification of Person Responsible for Making Arrangements - The changes would provide that a person should acknowledge his/her right to control the disposition of the deceased in writing, if possible.

Rule §203.31, Facilities Necessary in a Preparation Room - The changes would provide the operating table must be non-porous instead of rust proof metal or porcelain and the preparation room be used only for purposes related to the care of the deceased instead of "not used for other purposes." The proposed amendments also clarify the preparation room should not have any public restrooms, whether unenclosed or not. They require the preparation room to have appropriate personal protection equipment related to universal precautions. The proposed changes allow the Commission to require funeral establishments granted a preparation room exemption under §203.10 to have a room that conforms with some of the standards if human remains are ever present at the establishment.

Rule §203.32, Requirements Relating to Embalming - The changes would eliminate the requirement that clothing/personal effects be "thoroughly disinfected" and instead just state they should be "disinfected" as the Commission believes an item is either disinfected or it is not. The proposed amendment eliminates the specific requirement of one gallon of dilute solution per 50 pounds of body weight and instead allows for "sufficient" solution be used such that the embalmer is satisfied that the deceased will be presentable to the public.

Rule §203.33, Required Documentation for Embalming - The changes would eliminate citations to other statutes that concern the disposal of unclaimed bodies by county officials and the Anatomical Board's authority to receive unclaimed bodies. The proposed amendment also would allow a funeral establishment to include its logo on the Commission's Authorization to Embalm Form.

Rule §203.35, Location of Retained Records - The changes would permit a funeral establishment to release records to the person responsible for making arrangements for final disposition and not just to family members. With respect to petitions requesting an exemption from the requirement for the location of retained records by licensed establishments, the proposed amendments would require that records of different establishments not be commingled. The proposed changes provide an appeal process that an applicant whose petition for an exemption has been denied may follow. They also provide that a funeral establishment is authorized to maintain its records in a digital or electronic format, as long as it can print the records at the establishment.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: Janice McCoy, Executive Director, has determined for the first five-year period the amendments are in effect there will be no fiscal implication for local governments, or local economies and no state fiscal impact.

PUBLIC BENEFIT/COST NOTE. Ms. McCoy has determined that, for each year of the first five years the proposed amendments will be in effect, (1) the licensed community will no longer have to comply with unduly technical or cumbersome requirements that do not protect public health, safety, or welfare; and (2) the rules will provide greater clarity to the public and licensees. There will not be any economic cost to any individuals required to comply with the proposed amendments and there is no anticipated negative impact on local employment because the rules only further define and clarify statute.

ADVERSE IMPACT ON SMALL OR MICRO-BUSINESSES OR RURAL COMMUNITIES. Ms. McCoy has determined that there will be no adverse economic effect on small or micro-businesses or rural communities because there are no costs on individuals due to the amendments. As a result, the preparation of an economic impact statement and regulatory flexibility analysis as provided by Government Code §2006.002 are not required.

GOVERNMENT GROWTH IMPACT STATEMENT. Ms. McCoy also has determined that, for the first five years the amendments would be in effect: 1. The proposed amendments do not create or eliminate a government program; 2. The proposed amendments will not require a change in the number of employees of the agency; 3. The proposed amendments will not require additional future legislative appropriations; 4. The proposed amendments will not require an increase in fees paid to the agency; 5. The proposed amendments will not create a new regulation; 6. The proposed amendments will not expand, limit, or repeal an existing regulation; 7. The proposed amendments will not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed amendments will neither positively nor negatively affect this state's economy.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT. Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c). The proposed amendments do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government and no new fee is imposed. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

TAKINGS IMPACT ASSESSMENT: Ms. McCoy has determined Chapter 2007 of the Texas Government Code does not apply to this proposal because it affects no private real property interests. Accordingly, the Agency is not required to complete a takings impact assessment regarding this proposal.

ENVIRONMENTAL RULE ANALYSIS: Ms. McCoy has determined this proposal is not brought with the specific intent to protect the environment to reduce risks to human health from environmental exposure and asserts this proposal is not a major environmental Rule as defined by Government Code §2001.0225. As a result, an environmental impact analysis is not required.

PUBLIC COMMENT: Comments on the proposal may be submitted in writing to Mr. Kyle Smith at 333 Guadalupe Suite 2-110, Austin, Texas 78701, (512) 479-5064 (fax) or electronically to info@tfsc.texas.gov. Comments must be received no later than thirty (30) days after the date of publication of this proposal in the Texas Register.

This proposal is made pursuant to (1) Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work; (2) Texas Occupations Code §651.201 which requires the Commission to prepare a consumer brochure; (3) Texas Occupations Code §651.261 which requires a license to be conspicuously posted in a funeral establishment; (4) Texas Occupations Code §651. 351 which outlines requirements for funeral establishments including preparation rooms; (5) Texas Occupations Code §651.457 which outlines violations for improperly embalming a deceased human body; and (6) Texas Occupations Code §651.460 which outlines violations for failing to maintain records for two years.

No other statutes, articles, or codes are affected by this section.

§203.24.Display of License.

(a) The funeral establishment license shall be conspicuously displayed in an area of the establishment open and accessible to the general public.

(b) If a license holder is in contact with the public during the course of his or her job, the funeral establishment shall conspicuously display the holder's license in each place of business at which the license holder practices.

(c) If a license holder is not in contact with the public during the course of his or her job, the funeral establishment shall make the license available for inspection in each place of business at which the license holder practices.

(d) A license is conspicuously displayed when it is placed in an area of the funeral establishment generally accessed by a consumer making funeral arrangements.

(e) The displayed license must be an original non-expired license issued by the Commission.

(f) In the event the license holder who assists the public and/or embalms a dead human body is a temporary not a regular full or part time employee of the funeral establishment, the funeral establishment shall maintain a copy of the license holder's original license for inspection by a customer or prospective customer. The copy of the license holder's original license shall be maintained for a period of two years after the temporary employment occurred.

(g) If a regular full or regular part time employee is no longer employed by the funeral establishment, the funeral establishment shall maintain a copy of the license holder's original license for a period of two years after the employment ends.

§203.26.Presentation of Consumer Brochure.

(a) Consumer brochures as promulgated under §201.7 of this title (relating to Preparation and Dissemination of Consumer Information) shall be prominently displayed in the public view, offered free of charge for keeping to any person, and presented at the beginning of the arrangement conference for the disposition of a dead body.

(b) Consumer brochures are designed and printed by the Commission and may be copied only when the Commission is unable to furnish the funeral establishment with an ordered supply.

(c) The Commission determines the minimum order size and the fees for the brochures.

§203.27.Identification of Person Responsible for Making Arrangements.

Prior to discussing funeral arrangements, a funeral director should ask the person his/her relationship to the decedent to ensure the right to control disposition priority as outlined by Health and Safety Code, §711.002(a) is followed. If possible, the person should acknowledge his/her right to control disposition in writing. A funeral director or establishment may not be held liable if the person falsely represents he/she is the person entitled to control the disposition of the decedent.

§203.31.Facilities Necessary in a Preparation Room.

(a) The Commission will approve only those preparation rooms which meet the requirements of Occupations Code Chapter 651 and the following minimum standards:

(1) must be of sufficient size and dimensions to accommodate an operating table, a sink with water connections, and an instrument table, cabinet, or shelves:

(A) the operating table must be non-porous have a rust proof metal or porcelain top, with edges raised at least 3/4 inch around the entire table and a drain opening at the lower end;

(B) the sink must have hot and cold running water and drain freely; and

(C) the faucet must be equipped with an aspirator;

(2) must contain an injection/embalming machine and sufficient supplies and equipment for normal operations;

(3) must be clean, sanitary, and only used for purposes related to the care of the deceased not used for other purposes;

(4) must not have defective construction which permits the entrance of rodents;

(5) must not have evidence of infestation of insects or rodents;

(6) must be private and have no general passageway through it;

(7) must be properly ventilated with an exhaust fan that provides at least five room air exchanges per hour;

(8) must not have unenclosed or public restroom facilities located within the room;

(9) must have walls that which run from floor to ceiling and that are be covered with tile, or by plaster or sheetrock painted with washable paint;

(10) must have floors of concrete with a glazed surface, or tiled in order to provide the greatest sanitary condition possible, if tile is used, any grout or joint sealant must be unbroken and intact;

(11) must have doors, windows, and walls constructed to prevent odors from entering any other part of the building; and

(12) must have all windows and openings to the outside screened; and[.]

(13) must have appropriate personal protection equipment related to universal precautions.

(b) For establishments exempt under §203.10 of this title (relating to Preparation Room Exemption), the executive director may require the establishment to have a room with some of the above standards if deceased human remains will be present at the establishment.

§203.32.Requirements Relating to Embalming.

(a) In order to ensure the maximum inhibition of pathogenic organisms in the dead human body, the following minimum standards of performance shall be required of each licensed embalmer in the State of Texas in each instance in which he or she is authorized or required to embalm a dead human body.

(1) Embalming shall be performed only by embalmers licensed by the Commission, in properly equipped and licensed establishments, or in the event of a disaster of major proportions, in facilities designated by a Medical Examiner, Coroner, or state health official. Only three types of people may under certain circumstances assist licensed embalmers in embalming: provisional licensed embalmers under the personal supervision of a licensed embalmer; students who are enrolled in an accredited school of mortuary science working on a case intended toward completion of the student's clinical requirements, under the personal supervision of a licensed embalmer and with written permission to assist the embalmer from a family member or the person responsible for making arrangements for final disposition; and, in the event of a disaster of major proportions and with the prior approval of the Executive Director, embalmers licensed in another state as long as they are working with or under the general supervision of a person licensed as an embalmer in this state.

(2) Embalmers are required to utilize all personal protective equipment required by either OSHA or its corresponding state agency during the embalming procedure.

(3) Clothing and/or personal effects of the decedent shall either be thoroughly disinfected before delivery to any person or discarded in a manner consistent with the disposal of biohazardous material.

(4) The technique utilized to effect eye, mouth, and lip closure shall be any technique accepted as standard in the profession. Regardless of the technique chosen, the embalmer shall be required to achieve the best results possible under prevailing conditions.

(5) The entire body may be thoroughly cleaned before arterial injection and shall be cleaned immediately after the embalming procedure with an antiseptic soap or detergent.

(6) Body orifices (nostrils, mouth, anus, vagina, ear canals, and urethra) open lesions, and other surgical incisions shall be treated with appropriate topical disinfectants either before or immediately after arterial injection. After cavity treatment has been completed, body orifices shall be packed in cotton saturated with a suitable disinfectant of a phenol coefficient not less than one in cases where purge is evident or is likely to occur and/or when the body is to be transported out of state or by common carrier.

(7) The arterial fluid to be injected shall be one commercially prepared and marketed with its percent of formaldehyde, or other approved substance, by volume (index) clearly marked on the label or in printed material supplied by the manufacturer.

(8) The fluids selected shall be injected into all bodies in such dilutions and at such pressures as the professional experience of the embalmer shall indicate, except that in no instance shall dilute solution contain less than 1.0% formaldehyde, or an approved substance that acts the same as formaldehyde, and as the professional experience of the embalmer indicates, sufficient solution shall be used to the point where the embalmer is reasonably satisfied the deceased will be suitable for public presentation one gallon of dilute solution shall be used for each 50 pounds of body weight. Computation of solution strength is as follows: C x V = C' x V', where C = strength of concentrated fluid, V = volume of ounces of concentrated fluid, C' = strength of dilute fluid, and V' = volume of ounces of dilute fluid.

(9) Abdominal and thoracic cavities shall be treated in the following manner.

(A) Liquid, semi-solid, and gaseous contents which can be withdrawn through a trocar shall be aspirated by the use of the highest vacuum pressure attainable.

(B) Concentrated, commercially prepared cavity fluid which is acidic in nature (6.5 pH or lower) and contains at least two preservative chemicals shall be injected and evenly distributed throughout the aspirated cavities. A minimum of 16 ounces of concentrated cavity fluid shall be used in any embalming case in which a minimum of two gallons of arterial solution has been injected.

(C) Should distension and/or purge occur after treatment, aspiration and injection as required shall be repeated as necessary.

(10) The embalmer shall be required to check each body thoroughly after treatment has been completed. Any area not adequately disinfected by arterial and/or cavity treatment shall be injected hypodermically with disinfectant and preservative fluid of maximum results. A disinfectant and preservative medium shall be applied topically in those cases which require further treatment.

(11) On bodies in which the arterial circulation is incomplete or impaired by advance decomposition, burns, trauma, autopsy, or any other cause, the embalmer shall be required to use the hypodermic method to inject all areas which cannot be properly treated through whatever arterial circulation remains intact (if any).

(12) In the event that the procedures in paragraphs (1) - (11) of this subsection leave a dead human body in condition to constitute a high risk of infection to anyone handling the body, the embalmer shall be required to apply to the exterior of the body an appropriate embalming medium in powder or gel form and to enclose the body in a zippered plastic or rubber pouch prior to burial or other disposal.

(13) Dead human bodies donated to the State Anatomical Board shall be embalmed as required by the State Anatomical Board and where conflicting requirements exist, those requirements of the State Anatomical Board shall prevail.

(14) All bodies should be treated in such manner and maintained in such an atmosphere as to avoid infestation by vermin, maggots, ants, and other insects; however, should these conditions occur, the body should be treated with an effective vermicide and/or insecticide to eliminate these conditions.

(15) No licensed establishment or licensed embalmer shall take into its or the embalmer's care any dead human body for embalming without exerting every professional effort, and employing every possible technique or chemical, to achieve the highest level of disinfecting.

(16) Nothing in this section shall be interpreted to prohibit the use of supplemental or additional procedures or chemicals which are known to and accepted in the funeral service profession and which are not specifically mentioned in this subsection.

(b) Minor variations in these procedures shall be permitted as long as they do not compromise the purpose of this rule as stated in subsection (a) of this section.

(c) All embalming case reports must contain, at a minimum, all the information on the case-report form promulgated by the Commission. Funeral establishments may use other forms, so long as the forms contain all the information on the promulgated form. A case report shall be completed for each embalming procedure not later than the date of disposition of the body which was embalmed. The embalmer shall ensure that all information contained in the case report is correct and legible. The completed form shall be retained for two years following the procedure date. The embalming case report must be completed and signed by the licensed embalmer who performed the embalming procedure.

(d) Nothing in this section shall be interpreted to require embalming if a family member or the person responsible for making arrangements for final disposition does not authorize embalming.

§203.33.Required Documentation for Embalming.

(a) If permission to embalm is oral, the funeral establishment must maintain for two years written documentation of the name of the person authorizing embalming, that person's relationship to the deceased, and the time permission was obtained.

(b) When oral or written permission to embalm cannot be obtained from the person authorized to make funeral arrangements, the funeral establishment must maintain for two years written documentation of the efforts taken as mandated by Occupations Code §651.457 to obtain permission to embalm.

(c) Custody of Body.

(1) In cases where a Medical Examiner or Justice of the Peace has given permission to a funeral establishment to take custody of a body, the receiving funeral establishment may not embalm the body until the person responsible for making arrangements for final disposition has given permission. Nothing in this subsection shall be construed as allowing a funeral establishment to initiate contact with the person authorized to make funeral arrangements.

(2) Health and Safety Code Chapter 694 authorizes county officials to dispose of unclaimed bodies, and Health and Safety Code Chapter 691 authorizes the Anatomical Board to receive unclaimed bodies.

(d) Authorization to Embalm Form.

(1) If embalming is performed, the Commission promulgated Authorization to Embalm Form must be signed by a family member or the person responsible for making arrangements for final disposition when written authorization is secured.

(2) The Commission's Authorization to Embalm Form may not be altered and must be used in its adopted form. A copy of this form may be obtained from the Commission and may be reproduced by a licensed funeral establishment. A funeral establishment may include its logo on the form.

(e) If a mortuary student who is not a provisional licensee is to assist the licensed embalmer, the authorization pursuant to Occupations Code §651.407 must be in the possession of the funeral establishment and/or embalmer at the time of the embalming. A copy of the mortuary student authorization shall be retained according to Occupations Code §651.407.

(f) Nothing in this rule diminishes the requirement of the establishment to abide by the Federal Trade Commission funeral rule regarding embalming disclosures. In the event of a conflict between this rule and the Federal Trade Commission funeral rule, the Federal Trade Commission funeral rule prevails.

§203.35.Location of Retained Records.

(a) All records required for retention by Occupations Code Chapter 651 and Rules of the Commission, will be maintained for a minimum of two years within the physical confines of the licensed establishment where the funeral arrangements were made. The records must be made available to a family member or the person responsible for making arrangements for final disposition during regular business hours. Copies must be provided upon request to the Commission during the course of an investigation or inspection.

(b) Any licensed establishment may submit a petition to the Commission requesting an exemption to the portion of subsection (a) of this section which requires that retained records be kept within the physical confines of the licensed funeral establishment where the funeral arrangements were made. (c) Each petition will clearly state:

(1) a brief explanation of the problem(s) created by maintaining the records at that location;

(2) the rational or justification for the granting of the exemption;

(3) the specific remedy requested, including the alternative location selected;

(4) assurances that the records of the different establishments will not be comingled and the Commission will be able to easily access all records by name of the establishment, name of individual, or by date of service.

(c) (d) The Executive Director may grant the request only if the alternative location is a funeral establishment is within 100 miles of the other funeral establishment and both have the same owner. The Executive Director will grant, deny, or modify the requested relief.

(d) (e) The Executive Director will advise the licensed establishment in writing of the action taken. An applicant for an exemption may appeal to the Commissioners, in writing, the Executive Director's denial of the request for an exemption. The Commissioners' decision is final and not subject to judicial review.

(e) A funeral establishment is authorized to maintain its records in a digital or electronic format as long as the establishment has the ability to print the records at that establishment.

(f) Each petition will be considered separately and upon its own merit. When considering the petition, the Executive Director will take into account the proposed geographical location of the records and the licensee's demonstrated ability to substantially comply with the mortuary laws and the rules and regulations of the Commission as demonstrated in prior inspection reports and other documents submitted to the Commission.

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 July 10, 2019.

TRD-201902166

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-2469


SUBCHAPTER C. ENFORCEMENT

22 TAC §§203.41 - 203.45, 203.47

The Texas Funeral Service Commission (Commission) proposes to amend Title 22, Texas Administrative Code, Part 10, Chapter 203, Subchapter C - Enforcement, specifically Rule §203.41 Investigations; Rule §203.42 Notice and Hearings; Rule §203.43 Administrative Penalties and Sanctions; Rule §203.44 Procedures and Criteria for Inspections of Licensed Entities; Rule §203.45 Unprofessional Conduct; and Rule §203.47 Purchase Agreement (Statement of Funeral Goods and Services Selected).

BACKGROUND AND JUSTIFICATION. The Commission announced its intent to review its rules in accordance with Texas Government Code, §2001.039 in January and published notice in the Texas Register on April 19, 2019 (44 TexReg 2064). The agency held five meetings with stakeholders during its review period. The Commission has determined the reasons for initially adopting the rules in Title 22, Part 10, Chapter 203, Subchapter C continue to exist. However, changes to the following rules are necessary to comply with statutory changes made during the 86th Legislative Session (2019) in HB 1540 and HB 1731, as directed by the Texas Sunset Advisory Commission, or as requested by stakeholders to clarify the rules.

--Rule §203.41, Investigations - The changes would provide that the investigator send a summary of the complaint instead of a copy of the complaint upon opening an investigation to ensure confidentiality of complainant during initial stages of investigation. It would allow the respondent to request a redacted copy of the complaint upon request.

--Rule §203.42, Notice and Hearings - The changes would list the types of informal methods a respondent could use to settle a complaint to include negotiation with the staff attorney or an informal settlement conference with the executive director, staff attorney, investigator; would provide that an informal settlement conference must allow the complainant an opportunity to be present; and changes would clarify how a case is closed if a settlement is reached via informal methods.

--Rule §203.43, Administrative Penalties and Sanctions - The changes would allow the agency to adopt higher penalties for a violation if the respondent had multiple violations on his/her records even if the violations were not the same; and would authorize the Commission to require a respondent to pay a refund to a consumer in lieu of or in addition to an administrative penalty.

--Rule §203.44, Procedures and Criteria for Inspections of Licensed Entities - The changes would delete references to cemeteries and would eliminate Health and Safety Code Chapters 714 and 715 from inspection reviews as the Commission no longer has authority to regulate cemeteries. The amendments would establish reasons for the Commission to perform risk-based inspections to include previously found inspection violations, multiple enforcement violations, establishments with a change of ownership, and newly issued licenses. They would allow the Commission to inspect risk-based establishments annually; and would allow a risk-based establishment to be declassified as such if it has two consecutive inspections without violations and/or it has no proven violations within a two year period. Finally, the changes would renumber a provision that allows the Commission to inspect an establishment as a result of a complaint with the limited scope of proving/disproving the complaint.

--Rule §203.45, Unprofessional Conduct - The changes would provide it is unprofessional conduct for all licensed entities not just funeral establishments to operate in an unsanitary manner; and would provide it is unprofessional conduct to fail to make payment for services rendered on behalf of a consumer as the Commission believes the consumer ultimately could be harmed for the failure to pay.

--Rule §203.47, Purchase Agreement (Statement of Funeral Goods and Services Selected) - The changes would provide update as directed by HB 1731 enacted by the 86th Legislature regarding payments between funeral homes on behalf of a consumer being required to be included on a purchase agreement, specifically the charges related to removal, refrigeration, embalming (if authorized), transportation, and casket (if used).

FISCAL NOTE: Janice McCoy, Executive Director, has determined for the first five-year period the amendments are in effect there will be no fiscal implication for local governments, or local economies and no state fiscal impact.

PUBLIC BENEFIT/COST NOTE. Ms. McCoy has determined that, for each year of the first five years the proposed amendments will be in effect, the public benefit is that the agency's rules are in compliance with Texas Occupations Code Chapter 651. There will not be any economic cost to any individuals required to comply with the proposed amendments and there is no anticipated negative impact on local employment because the rules only further define and clarify statute.

ADVERSE IMPACT ON SMALL OR MICRO-BUSINESSES OR RURAL COMMUNITIES. The agency has determined that there will be no economic effect on small or micro-businesses or rural communities because the rules only further define and clarify statute.

GOVERNMENT GROWTH IMPACT STATEMENT. Ms. McCoy also has determined that, for the first five years the amendments would be in effect: 1. The proposed amendments do not create or eliminate a government program; 2. The proposed amendments will not require a change in the number of employees of the Agency; 3. The proposed amendments will not require additional future legislative appropriations; 4. The proposed amendments will not require an increase in fees paid to the Agency; 5. The proposed amendments will not create a new regulation; 6. The proposed amendments will not expand, limit, or repeal an existing regulation; 7. The proposed amendments will not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed amendments will neither positively nor negatively affect this state's economy.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT. Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c). The proposed amendments do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government and no new fee is imposed. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

TAKINGS IMPACT ASSESSMENT: Ms. McCoy has determined Chapter 2007 of the Texas Government Code does not apply to this proposal because it affects no private real property interests. Accordingly, the Agency is not required to complete a takings impact assessment regarding this proposal.

ENVIRONMENTAL RULE ANALYSIS: Ms. McCoy has determined this proposal is not brought with the specific intent to protect the environment to reduce risks to human health from environmental exposure and asserts this proposal is not a major environmental Rule as defined by Government Code §2001.0225. As a result, an environmental impact analysis is not required.

PUBLIC COMMENT: Comments on the proposal may be submitted in writing to Mr. Kyle Smith at 333 Guadalupe Suite 2-110, Austin, Texas 78701, (512) 479-5064 (fax) or electronically to info@tfsc.texas.gov. Comments must be received no later than thirty (30) days after the date of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY: This proposal is made pursuant to Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, and Texas Occupations Code §651.157, which outlines inspection procedures, including risk-based inspection; Texas Occupations Code §651.202, which allows for the investigation of complaints and for informal methods to settle complaints; Texas Occupations Code §651.2035, which requires confidentiality of complainant information; Texas Occupations Code §651.406, which provides for certain funeral homes to include certain charges from other funeral homes on a purchase agreement; Texas Occupations Code §651.459, which creates a violation for unprofessional conduct; Texas Occupations Code §651.507, which allows for increased penalties for multiple violations; and Texas Occupations Code §651.603, which authorizes the Commission to require refunds to consumers. The changes are made pursuant to updates to statutes as enacted by the 86th Texas Legislature in HB 1540 and HB 1731.

No other statutes, articles, or codes are affected by this section.

§203.41.Investigations.

(a) Upon receiving a written complaint, the complaint is given a complaint number and assigned to an Investigator for review. The Investigator performs an initial analysis to determine if the Commission has jurisdiction over the alleged violation and whether a violation of a statute or rule may have occurred.

(b) If the Investigator, in consultation with the Staff Attorney, determines that the Commission does not have jurisdiction of the matter or that the complaint does not reflect a violation, the case is administratively closed.

(c) If the Investigator, in consultation with the Staff Attorney, determines that the Commission has jurisdiction of the matter and that the complaint reflects a violation, the Investigator will send a summary [copy] of the complaint to the Respondent(s) along with a letter which outlines the alleged violation(s) and requests a written narrative response and relevant documents. A redacted copy of the complaint may be provided to the Respondent upon request. The Respondent(s) has 15 days from receipt of the letter to respond.

(d) In the course of the investigation or upon request of the Staff Attorney, the Investigator may request additional information from the Complainant, the Respondent(s), or any witnesses.

(e) The Investigator will prepare an Investigative Report (Report) for the Staff Attorney's review. The Report must contain the Investigator's findings and any applicable administrative penalties or license sanctions based upon the Administrative Penalties and Sanctions Schedule under §203.43 of this title.

§203.42.Notice and Hearings.

(a) Upon Staff Attorney approval of an Investigative Report (Report) finding a violation has occurred, the Investigator will send the Respondent(s) a copy of the Report and a letter notifying the Respondent(s) of the Commission's determination to assess an administrative penalty and/or sanction the Respondent's license(s).

(b) The Respondent(s) has 30 days from receipt of the letter to respond to this correspondence. The Respondent(s) can accept the Commission's determination or can request to settle the case by formal or informal methods. Failure to respond within 30 days waives the right to a hearing and requires payment of the assessed penalty and/or enforcement of the license sanction.

(c) Informal methods to settle a case can include the following options:

(1) Informal negotiation with the Staff Attorney or

(2) Informal settlement conference with Executive Director, Staff Attorney and Investigator. Additionally, the complainant shall be given an opportunity to present his/her allegations at the settlement conference.

(d) [(c)] If the Respondent accepts the Commission's determination to assess an administrative penalty and/or license sanction or if a settlement is reached via informal methods, the Respondent shall pay the penalty or shall enter into an Agreed Order with the Commission which is signed by the Executive Director. Once an Agreed Order is signed or the penalty is paid, the case is closed.

(e) [(d)] If no resolution is reached as outlined by subsection (d) [(c)] of this section, the Respondent is sent a Notice of Hearing and Complaint and the Commission sets the case on the SOAH Docket for a hearing before a SOAH Administrative Law Judge (ALJ).

(f) [(e)] Once the ALJ renders a Proposal for Decision (PFD), the PFD is presented to the Commissioners at the Commission's next regularly scheduled meeting.

(g) [(f)] The Commissioners accept or modify the PFD by Commission Order.

(h) [(g)] The Respondent can either accept the Commission's Order, or after exhausting all administrative remedies, the Respondent can appeal the Commission's decision by filing suit for judicial review in accordance with Government Code, Chapter 2001, and Occupations Code §651.555.

(i) [(h)] All correspondence to the Respondent(s) will be sent by both certified mail and first class mail to the Respondent's address of record on file with the Commission.

(j) [(i)] The Commission will notify the Complainant of the final disposition of the complaint.

(k) [(j)] Government Code §§2001.051 - 2001.103; Occupations Code §651.506; and SOAH's Rules of Practice and Procedure (Tex. Admin. Code, Title 1, §155) govern hearings held at SOAH.

(l) [(k)] The Commission's Alternative Dispute Resolution Policy and Procedure Rule, found in §207.1 of this title, and SOAH's Rules of Practice and Procedure, Tex. Admin. Code, Title 1, §155.351, govern ADR with Commission staff and mediation at SOAH.

§203.43.Administrative Penalties and Sanctions.

(a) If a person violates any provision of Occupations Code, Chapter 651; Health and Safety Code, Chapters 193, 361, 695, 711, 716; Finance Code Chapter 154; Tex. Admin. Code, Title 22, Part 10; or an order of the Executive Director or Commissioners, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both administrative penalties and sanctions in accordance with the provisions of Occupations Code §§651.5515 - 651.552.

(b) The Administrative Penalties and Sanctions Schedule published following this section sets penalty limits and ranges by class of offense and number of offenses.

(c) The Commission may negotiate a lower penalty than outlined in the Administrative Penalties and Sanctions Schedule based on the following factors:

(1) Attempts by the licensee to correct or stop the violation;

(2) Number of complaints previously found justified against licensee;

(3) Whether the act was unintentional; and

(4) Other mitigating factors that could warrant a lower penalty.

Figure: 22 TAC §203.43(c)(4)

(d) Multiple violations of Occupations Code, Chapter 651; Health and Safety Code, Chapters 193, 361, 695, 711, 716; Finance Code Chapter 154; Tex. Admin. Code, Title 22, Part 10, may result in higher penalties, even if the violations proven were not the same section of law violated.

(e) The Commission may require a licensee to issue a refund to a consumer in lieu of or in addition to assessing an administrative penalty.

Figure: 22 TAC §203.43(e) (.pdf)

§203.44.Procedures and Criteria for Inspections of Licensed Entities.

(a) Inspection Procedures.

(1) All licensed funeral establishments, commercial embalming facilities, and crematories, and cemeteries shall be inspected at least once every two years. [The Commission shall give lower priority to the inspection of cemeteries.]

(2) All inspections shall be unannounced.

(3) The inspector shall review prior inspection reports before inspecting a licensed entity. If prior reports reveal problems, the inspector shall determine whether the licensed entity has corrected the previously identified problems or whether a pattern of violations or new violations exist.

(4) Inspectors shall use reasonable efforts to conduct inspections between the hours of 8:00 a.m. and 5:00 p.m., but a licensed entity is required to be open at all times to inspections for violations of Occupations Code, Chapter 651, and Health and Safety Code, Chapters 193, 361, 711, [714, 715] and 716.

(5) If a licensed entity is not open for business during regular business hours and an inspector is unable to contact any employee or owner to open the licensed entity to conduct the inspection, the inspector shall notify the licensed entity by mail of the attempted inspection. If a licensed entity is unavailable for inspection during regular business hours twice during a six month period, the Commission may file a complaint against the licensed entity, making the licensed entity subject to an administrative penalty or other action.

(b) The Commission may classify a licensed entity as risk-based for the following reasons: [Criteria for Risk-Based Inspections.]

(1) Previously [If the Commission previously ] found violations of Occupations Code, Chapter 651, and Health and Safety Code, Chapters 193, 361, 711, [714, 715] and 716, following a regular [biennial] inspection[, a licensed entity shall be inspected annually until it is free of all violations].

(2) Multiple [Licensed entities that have received a reprimand or letter of warning, that have been assessed administrative penalties, that have had licenses suspended, or that have received a letter ordering the licensed entity to cease and desist for] violations of Occupations Code, Chapter 651, or Rules of the Commission [are subject to inspection at anytime within three years following the date that the Commission's action became final].

(3) Change of ownership. [If the Commission is in the process of conducting an investigation of a licensed entity, staff may inspect the licensed entity for the limited purpose of proving or disproving the validity of the complaint. The scope of inspections under this paragraph shall be limited to matters relating to the subject of the complaint.]

(4) Newly issued license.

(c) Notwithstanding subsection (a)(1) of this section, a licensed entity may be inspected annually if the Commission classifies the entity as risk-based [a cemetery may not be inspected unless an interment has occurred in the cemetery within the two years preceding the inspection or the Commission has received a complaint about the cemetery].

(d) The Commission will declassify an establishment as risk-based if it has two consecutive inspections with no found violations and/or it has no proven violations within a two year period.

(e) If the Commission is in the process of conducting an investigation of a licensed entity, staff may inspect the licensed entity for the limited purpose of proving or disproving the validity of the complaint. The scope of inspections under this paragraph shall be limited to matters relating to the subject of the complaint.

§203.45.Unprofessional Conduct.

(a) The Commission may, in its discretion, refuse to issue or renew a license or may fine, revoke, or suspend any license granted by the Commission if the Commission finds that the applicant or licensee has engaged in unprofessional conduct as defined in this section.

(b) For the purpose of this section, unprofessional conduct shall include but not be limited to:

(1) providing funeral goods and services or performing acts of embalming in violation of Occupations Code, Chapter 651, the Rules of the Commission or applicable health and vital statistics laws and rules;

(2) refusing or failing to keep, maintain or furnish any record or information required by law or rule, including a failure to timely submit any documentation requested during the course of a Commission investigation;

(3) operating the licensed entity [a funeral establishment] in an unsanitary manner;

(4) failing to practice funeral directing or embalming in a manner consistent with the public health or welfare;

(5) obstructing a Commission employee in the lawful performance of such employee's duties of enforcing Occupations Code, Chapter 651, or the Rules of the Commission;

(6) copying, retaining, repeating, or transmitting in any manner the questions contained in any examination administered by the Commission;

(7) physically abusing or threatening to physically abuse a Commission employee during the performance of his lawful duties;

(8) conduct which is willful, flagrant, or shameless or which shows a moral indifference to the standards of the community;

(9) in the practice of funeral directing or embalming, engaging in:

(A) fraud, which means an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him, or to surrender a legal right, or to issue a license; a false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives or is intended to deceive another;

(B) deceit, which means the assertion, as a fact, of that which is not true by any means whatsoever to deceive or defraud another;

(C) misrepresentation, which means a manifestation by words or other conduct which is a false representation of a matter of fact;

(10) communicating directly or indirectly with a Commissioner during the pendency of a complaint in connection with an issue of fact or law, except upon notice and opportunity for each party to participate;

(11) attempting to influence a complainant or witness in any complaint case to change the nature of the complaint, or withdraw the complaint by means of coercion, harassment, bribery, or by force, or threat of force;

(12) retaliating or threatening to retaliate against a complainant who has filed a complaint with the Commission in good faith; [or]

(13) failing to make payment for services rendered on behalf of a consumer; or

(14) [(13)] violating any Texas law or administrative rules governing the transportation, storage, refrigeration, interment, cremation, or disinterment of the dead.

§203.47.Purchase Agreement (Statement of Funeral Goods and Services Selected).

(a) Funeral providers must give an itemized written statement for retention to each person who arranges a funeral or other disposition of human remains, at the conclusion of the discussion of arrangements. The Purchase Agreement must list at least the following information:

(1) the funeral goods and funeral services selected by that person and the prices to be paid for each of them, unless there is a discounted package arrangement that itemizes the discount provided by the package arrangement;

(2) specifically itemized cash advance items. (These prices must be given to the extent then known or reasonably ascertainable. If the prices are not known or reasonably ascertainable, a good faith estimate shall be given and a written statement of the actual charges shall be provided before the final bill is paid.);

(3) the total cost of the goods and services selected;

(4) the complete description of all goods purchased as described in §203.46(2) - (5) of this title.

(b) The information required by this section may be included on any contract, statement, or other document which the funeral provider would otherwise provide at the conclusion of discussion of arrangements.

(c) If a funeral provider's graphically illustrated logo or a bold listing of the logo is included in an obituary, the funeral provider shall list separately the additional cost, if any, related to the inclusion of such logo in the cash advance portion of the Purchase Agreement.

(d) If a funeral establishment receives a dead human body from another funeral establishment, the receiving funeral establishment shall include under cash advances on the purchase agreement any amount owed by the customer for services provided to but not paid for by the customer. The receiving funeral establishment shall remit the funds collected from the consumer to the transferring funeral establishment. Services that may be charged by the receiving funeral establishment on behalf of the transferring funeral establishment include the following:

(1) removal;

(2) refrigeration;

(3) embalming, if authorized;

(4) transportation; and

(5) casket, if used.

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 July 10, 2019.

TRD-201902167

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-2469


CHAPTER 205. CREMATORIES

The Texas Funeral Service Commission (Commission) proposes to amend Title 22 Texas Administrative Code Part 10, Chapter 205, Cemeteries and Crematories, §205.5, Acceptance of Remains, and repeal both §205.1, Cemetery License Requirements and Procedure, and §205.2, Ingress and Egress to Cemeteries and Private Burial Grounds Which Have No Public Ingress or Egress.

BACKGROUND AND JUSTIFICATION. The Commission announced its intent to review its rules in accordance with Texas Government Code, §2001.039 in January and published notice in the Texas Register on April 19, 2019 (44 TexReg 2064). The agency held five meetings with stakeholders during its review period. The Commission has determined the reasons for initially adopting the rules in Title 22, Part 10, Chapter 205 continue to exist. However, changes to the following rules are necessary to comply with statutory changes made during the 86th Legislative Session in HB 1540, as directed by the Texas Sunset Advisory Commission, or as requested by stakeholders to clarify the rules.

Chapter 205, Cemeteries and Crematories, is being amended to remove references to cemeteries as a direct result of HB 1540, passed by the 86th Texas Legislature which repeals the Commission's authority over cemeteries. The title of Chapter 205 is being amended as well to "Crematories."

Sections 205.1, Cemetery License Requirements and Procedure, and 205.2, Ingress and Egress to Cemeteries and Private Burial Grounds Which Have No Public Ingress or Egress - These sections are proposed for repeal as a direct result of HB 1540, passed by the 86th Texas Legislature which repeals the Commission's authority over cemeteries.

Section 205.5, Acceptance of Remains - The changes would delete language prohibiting certain crematories from accepting human remains for cremation until the cremation is authorized by a justice of the peace/medical examiner and instead mirror statute to allow a crematory to accept human remains for refrigeration before receiving authority to cremate.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: Janice McCoy, Executive Director, has determined for the first five-year period the amendment and repeals are in effect there will be no fiscal implication for local governments, or local economies and no state fiscal impact.

PUBLIC BENEFIT/COST NOTE. Ms. McCoy has determined that, for each year of the first five years the proposed amendment and repeals will be in effect, the public benefit is that the agency's rules will be in compliance with legislative requirements in HB 1540, passed by the 86th Texas Legislature. There will not be any economic cost to any individuals required to comply with the proposed amendment and repeals and there is no anticipated negative impact on local employment because the amendment and repeals do not impose additional costs or impact the need for workers locally.

ADVERSE IMPACT ON SMALL OR MICRO-BUSINESSES OR RURAL COMMUNITIES. Ms. McCoy has determined that there will be no adverse economic effect on small or micro-businesses or rural communities because there are no costs on individuals due to the amendment and repeals. As a result, the preparation of an economic impact statement and regulatory flexibility analysis as provided by Government Code §2006.002 are not required.

GOVERNMENT GROWTH IMPACT STATEMENT. Ms. McCoy also has determined that, for the first five years the amendment and repeals would be in effect: 1. The proposed amendment and repeals eliminate the requirement that certain defined cemeteries be licensed by the Commission thereby decreasing state regulations; 2. The proposed amendment and repeals will not require a change in the number of employees of the agency; 3. The proposed amendment and repeals will not require additional future legislative appropriations; 4. The proposed amendment and repeals will not require an increase in fees paid to the agency; 5. The proposed amendment and repeals will not create a new regulation; 6. The proposed amendment will not expand or limit and existing regulation; however, section 205.1 and 205.2 requiring that certain cemeteries be licensed by the Commission are being repealed; 7. The proposed amendment and repeals will not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed are being repealed will neither positively nor negatively affect this state's economy.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT. Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c). The proposed amendments do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government and no new fee is imposed. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

TAKINGS IMPACT ASSESSMENT: Ms. McCoy has determined Chapter 2007 of the Texas Government Code does not apply to this proposal because it affects no private real property interests. Accordingly, the Agency is not required to complete a takings impact assessment regarding this proposal.

ENVIRONMENTAL RULE ANALYSIS: Ms. McCoy has determined this proposal is not brought with the specific intent to protect the environment to reduce risks to human health from environmental exposure and asserts this proposal is not a major environmental Rule as defined by Government Code §2001.0225. As a result, an environmental impact analysis is not required.

PUBLIC COMMENT: Comments on the proposal may be submitted in writing to Mr. Kyle Smith at 333 Guadalupe Suite 2-110, Austin, Texas 78701, (512) 479-5064 (fax) or electronically to info@tfsc.texas.gov. Comments must be received no later than thirty (30) days after the date of publication of this proposal in the Texas Register.

22 TAC §205.1, §205.2

This proposal is made pursuant to Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work; Texas Health & Safety Code §716.0035 which outlines when a crematory establishment may accept decease human remains; and HB 1540, passed by the 86th Texas Legislature which removed the Commission's authority to regulate cemeteries.

No other statutes, articles, or codes are affected by this section.

§205.1.Cemetery License Requirements and Procedure.

§205.2.Ingress and Egress to Cemeteries and Private Burial Grounds Which Have No Public Ingress or Egress.

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 July 12, 2019.

TRD-201902190

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-2469


22 TAC §205.5

This proposal is made pursuant to Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work; Texas Health & Safety Code §716.0035 which outlines when a crematory establishment may accept decease human remains; and HB 1540, passed by the 86th Texas Legislature which removed the Commission's authority to regulate cemeteries.

No other statutes, articles, or codes are affected by this section.

§205.5.Acceptance of Remains.

A crematory establishment may accept deceased human remains for refrigeration before it receives authorization to cremate under Texas Health & Safety Code, Chapter 716 Subchapter B. A crematory not licensed as a funeral establishment may not accept deceased human remains for cremation until cremation is authorized by a justice of the peace or a medical examiner in the county in which the death occurred.

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 July 10, 2019.

TRD-201902170

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-2469


CHAPTER 206. GUARANTEED STUDENT LOANS

22 TAC §206.1

The Texas Funeral Service Commission (Commission) proposes to repeal Title 22 Texas Administrative Code Part 10, Chapter 206, §206.1, Guaranteed Student Loans.

BACKGROUND AND JUSTIFICATION. The 86th Legislature (2019) enacted SB 37 by Senator Judith Zaffirini. This legislation prohibits licensing authorities from enacting rules that bar license holders who are in default on student loans from renewing their licenses. Therefore, this proposal would repeal the Commission's rule which allows the Commission to take such action.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENTS: Janice McCoy, Executive Director, has determined there is no fiscal implication for local governments, but to the extent the repeal could result in additional licensees, there may be an increase in revenue to the state government.

PUBLIC BENEFIT/COST NOTE. Ms. McCoy has determined that, for each year of the first five years the proposed repeal will be in effect, the public benefit is that the agency will no longer deny license renewal to certain individuals, potentially increasing the number of licensees authorized to perform funeral services. There will not be any economic cost to any individuals required to comply with the proposed repeal and there is no anticipated negative impact on local employment because the repeal will possibly result in more individuals eligible to perform funeral services.

ADVERSE IMPACT ON SMALL OR MICRO-BUSINESSES OR RURAL COMMUNITIES. The agency has determined that there will be no adverse economic effect on small or micro-businesses or rural communities because there are no costs on individuals due to the repeal. As a result, the preparation of an economic impact statement and regulatory flexibility analysis, as provided by Government Code §2006.002, are not required.

GOVERNMENT GROWTH IMPACT STATEMENT. Ms. McCoy also has determined that, for the first five years the repeal would be in effect: 1. The proposed repeal does not create or eliminate a government program; 2. The proposed repeal will not require a change in the number of employees of the Agency; 3. The proposed repeal will not require additional future legislative appropriations; 4. The proposed repeal will not require an increase in fees paid to the Agency; 5. The proposed repeal will not create a new regulation; 6. The proposal does repeal an existing regulation in order to comply with the provisions of 86R HB 37; 7. The proposed repeal will not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed repeal will not negatively affect this state's economy. However, the proposed repeal could positively impact the state's economy by adding more licensed funeral service providers in the marketplace, potentially increasing economic activity and growth.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT. Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c). The proposed repeal does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government and no new fee is imposed. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

TAKINGS IMPACT ASSESSMENT: Ms. McCoy has determined Chapter 2007 of the Texas Government Code does not apply to this proposal because it affects no private real property interests. Accordingly, the Agency is not required to complete a takings impact assessment regarding this proposal.

ENVIRONMENTAL RULE ANALYSIS: Ms. McCoy has determined this proposal is not brought with the specific intent to protect the environment to reduce risks to human health from environmental exposure and asserts this proposal is not a major environmental Rule as defined by Government Code §2001.0225. As a result, an environmental impact analysis is not required.

PUBLIC COMMENT: Comments on the proposal may be submitted in writing to Mr. Kyle Smith at 333 Guadalupe Suite 2-110, Austin, Texas 78701, (512) 479-5064 (fax) or electronically to info@tfsc.texas.gov. Comments must be received no later than thirty (30) days after the date of publication of this proposal in the Texas Register.

This proposal is made pursuant to Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, and SB 37, passed by the 86th Texas Legislature (2019).

No other statutes, articles, or codes are affected by this section.

§206.1.Default and Repayment Agreements.

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 July 10, 2019.

TRD-201902171

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-2469