TITLE 22. EXAMINING BOARDS

PART 1. TEXAS BOARD OF ARCHITECTURAL EXAMINERS

CHAPTER 1. ARCHITECTS

The Texas Board of Architectural Examiners (Board) adopts amendments to Texas Administrative Code Part 1, Title 22, §1.5 and §1.65. The amendments are adopted without changes to the proposed text as published in the March 27, 2020, issue of the Texas Register (45 TexReg 2104). The rules will not be republished.

Reasoned Justification. The adopted rules implement Senate Bill 37 (86th Regular Session, 2019), which amends the law relating the effect of student loan default on the renewal of a professional license in Texas. Under former Texas Education Code §57.491, licensing agencies were prohibited from renewing the license of a person who was in default on loans guaranteed by the Texas Guaranteed Student Loan Corporation (TGSLC). Additionally, licensing agencies were required to adopt rules to carry out their duties under the previous law. Pursuant to these requirements, the board previously adopted former §1.65(d), which identified the process used by the Board to deny registration renewal for an architect registrant who defaulted on the repayment of a loan guaranteed by the TGSLC. The Board also previously adopted definitions in §1.5 for the terms "Texas Guaranteed Student Loan Corporation" and "TGSLC."

However, under SB 37, the legislature repealed Education Code §57.491. Furthermore, SB 37 enacted Occupations Code §56.003, which prohibits licensing authorities from taking disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract, including denying renewal. Since the Board is no longer required to deny the licensure renewal of such individuals, and is in fact prohibited from doing so, §1.65(d) is obsolete and contrary to the amended law. Therefore, the adopted rule repeals §1.65(d). Additionally, the adopted rule repeals the definitions for "Texas Guaranteed Student Loan Corporation" and "TGSLC" in §1.5. Since reference to these terms within the board's rules was limited to §1.65(d), continued definition of these terms is unnecessary under the adopted rule.

Summary of Comments and Agency Response.

The Board did not receive any comments on the proposed rules.

SUBCHAPTER A. SCOPE; DEFINITIONS

22 TAC §1.5

Statutory Authority. Amended §1.05 is adopted under Texas Occupations Code §1051.202, which authorizes the board to adopt reasonable rules as necessary to regulate the practice of architecture and Tex. Occ. Code §56.003, which prohibits licensing authorities from taking disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract, including denying renewal.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002444

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


SUBCHAPTER D. CERTIFICATION AND ANNUAL REGISTRATION

22 TAC §1.65

STATUTORY AUTHORITY

Amended §1.65 is adopted under Tex. Occ. Code §1051.202, which authorizes the board to adopt reasonable rules as necessary to regulate the practice of architecture and Tex. Occ. Code §56.003, which prohibits licensing authorities from taking disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract, including denying renewal.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002445

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


CHAPTER 1. ARCHITECTS

The Texas Board of Architectural Examiners (Board) adopts amendments to Texas Administrative Code Part 1, Title 22, §§1.26, 1.27, 1.149, and 1.153. The amendments are adopted without changes to the proposed text published in the March 27, 2020, issue of the Texas Register (45 TexReg 2107). The rules will not be republished.

Reasoned Justification.

The adopted rules implement House Bill 1342 (86th Regular Session, 2019). HB 1342 amended Chapter 53 of the Texas Occupations Code, which addresses the consequences of criminal actions with respect to occupational licenses. In summary, the HB 1342 amendments to Chapter 53 eliminated the authority of licensing authorities to take licensure action for certain criminal offenses and supplemented the procedural requirements for an agency considering licensure action as a consequence of criminal history.

Previously, the board adopted rules implementing Occupations Code Chapter 53 as it pertains to the registration and regulation of architects. The board adopts the following amendments to these rules in order to implement the changes imposed by HB 1342.

The board adopts amended §1.26, relating to Preliminary Evaluation of Criminal History for certain interested persons. The amended rule implements amended Tex. Occ. Code §53.051(1) by requiring the executive director to identify the statutorily-required factors that served as the basis for a determination that a person requesting an evaluation is ineligible for registration as an architect.

The board adopts amended §1.27, relating to Provisional Licensure. The amended rule addresses the loss of authority in Tex. Occ. Code §53.021(a) for a licensing authority to take licensure action based on a conviction not directly related to the profession, provided it had been committed less than five years before the filing of an application. Formerly, §1.27 distinguished between crimes that were and were not committed within five years of the filing of an application in determining whether the board was required to issue an architectural registration to a candidate. Since this distinction is no longer relevant under amended Tex. Occ. Code §53.021, it is unnecessary for this distinction to be made in §1.27. Therefore, the amended rule does not reference this factor. Additionally, the amended rule replaces an obsolete reference to "§3g, Article 42.12, Code of Criminal Procedure," in §1.27(a) with the updated reference to "Article 42A.054" of the same. Lastly, the amended rule corrects an error in the last sentence of §1.27(e) by replacing the word "provided" with "provide."

The board adopts amended §1.149, related to Criminal Convictions. Subsection (a) is amended to implement the loss of authority in Tex. Occ. Code §53.021(a) for a licensing authority to take licensure action based a conviction not directly related to the profession if it was committed less than five years before the filing of an application. Subsection (a) is also amended to include an updated reference to Article 42A.054, Code of Criminal Procedure, as discussed above. Adopted amendments to subsections (b)(3) and (4) implement changes to Tex. Occ. Code §§53.0231, 53.051(1), and 53.104(b) that require licensing authorities to observe certain procedures when considering licensure action for criminal history. Amended subsections (c) and (d) implement amended Tex. Occ. Code §§53.022 and 53.023, which clarifies and amends the factors that licensing authorities are required to consider in determining whether a conviction is directly related to the duties and responsibilities of a licensed occupation and, if so, whether licensure action should be taken. Subsection (h) is amended to implement changes to Tex. Occ. Code §53.051, relating to information that must be provided to a person subject to suspension, revocation, or denial of licensure.

The board adopts amended §1.153, relating to Deferred Adjudication. These amendments implement previous legislative changes to §53.021(d), which addresses the limited circumstances in which a licensing authority may consider deferred action criminal proceedings in licensing decisions. The proposed amendments adopt the limitations imposed under the law.

Summary of Comments and Agency Response. The Board did not receive any comments on the proposed rules.

SUBCHAPTER B. ELIGIBILITY FOR REGISTRATION

22 TAC §1.26, §1.27

STATUTORY AUTHORITY

Amended §1.26 and §1.27 are adopted under Tex. Occ. Code §1051.202, which authorizes the board to adopt reasonable rules as necessary to regulate the practice of architecture; Tex. Occ. Code §53.021, which identifies the categories of offenses that may be considered by a licensing authority in making licensing determinations; Tex. Occ. Code §53.0211, which governs the issuance of provisional licenses by a licensing authority; Tex. Occ. Code §§53.022 and 53.023, which identify the factors that a licensing authority must consider when determining whether a conviction directly relates to an occupation, and, if so, whether to take licensing action; and Texas Occ. Code Chapter 53, Subchapter D, which governs preliminary evaluations of criminal history by a licensing authority for certain interested persons.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002438

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


SUBCHAPTER H. PROFESSIONAL CONDUCT

22 TAC §1.149, §1.153

STATUTORY AUTHORITY

Amended §1.149 and §1.153 are adopted under Texas Occupations Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of architecture; Tex. Occ. Code §53.021, which identifies the categories of offenses that may be considered by a licensing authority in making licensing determinations; Tex. Occ. Code §§53.022 and 53.023, which identify the factors that a licensing authority must consider when determining whether a conviction directly relates to an occupation, and, if so, whether to take licensing action; and Tex. Occ. Code §§53.0231 and 53.051, which identify the procedural requirements that must be observed by a licensing authority that seeks to revoke or suspend a license or deny a license or an opportunity to be examined for licensure.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002439

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


CHAPTER 3. LANDSCAPE ARCHITECTS

The Texas Board of Architectural Examiners (Board) adopts amendments to Texas Administrative Code Part 1, Title 22, §3.5 and §3.65. The amendments are adopted without changes to the proposed text as published in the March 27, 2020, issue of the Texas Register (45 TexReg 2110). The rules will not be republished.

Reasoned Justification. The adopted rules implement Senate Bill 37 (86th Regular Session, 2019), which amends the law relating the effect of student loan default on the renewal of a professional license in Texas. Under former Texas Education Code §57.491, licensing agencies were prohibited from renewing the license of a person who was in default on loans guaranteed by the Texas Guaranteed Student Loan Corporation (TGSLC). Additionally, licensing agencies were required to adopt rules to carry out their duties under the previous law. Pursuant to these requirements, the board previously adopted former §3.65(d), which identified the process used by the Board to deny registration renewal for a landscape architect registrant who defaulted on the repayment of a loan guaranteed by the TGSLC. Additionally, the Board previously adopted definitions in §3.5 for the terms "Texas Guaranteed Student Loan Corporation" and "TGSLC."

However, under SB 37, the legislature repealed Education Code §57.491. Furthermore, SB 37 enacted Occupations Code §56.003, which prohibits licensing authorities from taking disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract, including denying renewal. Since the Board is no longer required to deny the licensure renewal of such individuals, and is in fact prohibited from doing so, §3.65(d) is obsolete and contrary to the amended law. Therefore, the adopted rule repeals §3.65(d). Additionally, the adopted rule repeals the definitions for "Texas Guaranteed Student Loan Corporation" and "TGSLC" in §3.5. Since reference to these terms within the board's rules was limited to §3.65(d), continued definition of these terms is unnecessary under the adopted rule.

Summary of Comments and Agency Response.

The Board did not receive any comments on the proposed rules.

SUBCHAPTER A. SCOPE; DEFINITIONS

22 TAC §3.5

Statutory Authority. Amended §3.05 is adopted under Texas Occupations Code §1051.202, which authorizes the board to adopt reasonable rules as necessary to regulate the practice of landscape architecture and Tex. Occ. Code §56.003, which prohibits licensing authorities from taking disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract, including denying renewal.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002446

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


SUBCHAPTER D. CERTIFICATION AND ANNUAL REGISTRATION

22 TAC §3.65

STATUTORY AUTHORITY

Amended §3.65 is adopted under Tex. Occ. Code §1051.202, which authorizes the board to adopt reasonable rules as necessary to regulate the practice of landscape architecture and Tex. Occ. Code §56.003, which prohibits licensing authorities from taking disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract, including denying renewal.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002447

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


CHAPTER 3. LANDSCAPE ARCHITECTS

The Texas Board of Architectural Examiners (Board) adopts amendments to Texas Administrative Code Part 1, Title 22, §§3.26, 3.27, 3.149, and 3.153. The amendments are adopted without changes to the proposed text as published in the March 27, 2020, issue of the Texas Register (45 TexReg 2111). The rules will not be republished.

Reasoned Justification.

The adopted rules implement House Bill 1342 (86th Regular Session, 2019). HB 1342 amended Chapter 53 of the Texas Occupations Code, which addresses the consequences of criminal actions with respect to occupational licenses. In summary, the HB 1342 amendments to Chapter 53 eliminated the authority of licensing authorities to take licensure action for certain criminal offenses and supplemented the procedural requirements for an agency considering licensure action as a consequence of criminal history.

Previously, the board adopted rules implementing Occupations Code Chapter 53 as it pertains to the registration and regulation of landscape architects. The board adopts the following amendments to these rules in order to implement the changes imposed by HB 1342.

The board adopts amended §3.26, relating to Preliminary Evaluation of Criminal History for certain interested persons. The amended rule implements amended Tex. Occ. Code §53.051(1) by requiring the executive director to identify the statutorily-required factors that served as the basis for a determination that a person requesting an evaluation is ineligible for registration as a landscape architect.

The board adopts amended §3.27, relating to Provisional Licensure. The amended rule addresses the loss of authority in Tex. Occ. Code §53.021(a) for a licensing authority to take licensure action based on a conviction not directly related to the profession, provided it had been committed less than five years before the filing of an application. Formerly, §3.27 distinguished between crimes that were and were not committed within five years of the filing of an application in determining whether the board was required to issue a landscape architectural registration to a candidate. Since this distinction is no longer relevant under amended Tex. Occ. Code §53.021, it is unnecessary for this distinction to be made in §3.27. Therefore, the amended rule does not reference this factor. Additionally, the amended rule replaces an obsolete reference to "§3g, Article 42.12, Code of Criminal Procedure," in §3.27(a) with the updated reference to "Article 42A.054" of the same.

The board adopts amended §3.149, related to Criminal Convictions. Subsection (a) is amended to implement the loss of authority in Tex. Occ. Code §53.021(a) for a licensing authority to take licensure action based a conviction not directly related to the profession if it was committed less than five years before the filing of an application. Subsection (a) is also amended to include an updated reference to Article 42A.054, Code of Criminal Procedure, as discussed above. Adopted amendments to subsections (b)(3)&(4) implement changes to Tex. Occ. Code §§53.0231, 53.051(1), and 53.104(b) that require licensing authorities to observe certain procedures when considering licensure action for criminal history. Amended subsections (c) and (d) implement amended Tex. Occ. Code §§53.022 and 53.023, which clarifies and amends the factors that licensing authorities are required to consider in determining whether a conviction is directly related to the duties and responsibilities of a licensed occupation and, if so, whether licensure action should be taken. Subsection (h) is amended to implement changes to Tex. Occ. Code §53.051, relating to information that must be provided to a person subject to suspension, revocation, or denial of licensure.

The board adopts amended §3.153, relating to Deferred Adjudication. These amendments implement previous legislative changes to §53.021(d), which addresses the limited circumstances in which a licensing authority may consider deferred action criminal proceedings in licensing decisions. The proposed amendments adopt the limitations imposed under the law.

Summary of Comments and Agency Response.

The Board did not receive any comments on the proposed rules.

SUBCHAPTER B. ELIGIBILITY FOR REGISTRATION

22 TAC §3.26, §3.27

STATUTORY AUTHORITY

Amended §3.26 and §3.27 are adopted under Tex. Occ. Code §1051.202, which authorizes the board to adopt reasonable rules as necessary to regulate the practice of landscape architecture; Tex. Occ. Code §53.021, which identifies the categories of offenses that may be considered by a licensing authority in making licensing determinations; Tex. Occ. Code §53.0211, which governs the issuance of provisional licenses by a licensing authority; Tex. Occ. Code §§53.022 and 53.023, which identify the factors that a licensing authority must consider when determining whether a conviction directly relates to an occupation, and, if so, whether to take licensing action; and Texas Occ. Code Chapter 53, Subchapter D, which governs preliminary evaluations of criminal history by a licensing authority for certain interested persons.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002440

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


SUBCHAPTER H. PROFESSIONAL CONDUCT

22 TAC §3.149, §3.153

STATUTORY AUTHORITY

Amended §3.149 and §3.153 are adopted under Texas Occupations Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of landscape architecture; Tex. Occ. Code §53.021, which identifies the categories of offenses that may be considered by a licensing authority in making licensing determinations; Tex. Occ. Code §§53.022 and 53.023, which identify the factors that a licensing authority must consider when determining whether a conviction directly relates to an occupation, and, if so, whether to take licensing action; and Tex. Occ. Code §§53.0231 and 53.051, which identify the procedural requirements that must be observed by a licensing authority that seeks to revoke or suspend a license or deny a license or an opportunity to be examined for licensure.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002441

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


CHAPTER 5. REGISTERED INTERIOR DESIGNERS

The Texas Board of Architectural Examiners (Board) adopts amendments to Texas Administrative Code Part 1, Title 22, §5.5 and §5.75. The amendments are adopted without changes to the proposed text published in the March 27, 2020, issue of the Texas Register (45 TexReg 2115). The rules will not be republished.

Reasoned Justification. The adopted rules implement Senate Bill 37 (86th Regular Session, 2019), which amends the law relating the effect of student loan default on the renewal of a professional license in Texas. Under former Texas Education Code §57.491, licensing agencies were prohibited from renewing the license of a person who was in default on loans guaranteed by the Texas Guaranteed Student Loan Corporation (TGSLC). Additionally, licensing agencies were required to adopt rules to carry out their duties under the previous law. Pursuant to these requirements, the board previously adopted former §5.75(d), which identified the process used by the Board to deny registration renewal for a registered interior designer who defaulted on the repayment of a loan guaranteed by the TGSLC. Additionally, the Board previously adopted definitions in §5.5 for the terms "Texas Guaranteed Student Loan Corporation" and "TGSLC."

However, under SB 37, the legislature repealed Education Code §57.491. Furthermore, SB 37 enacted Occupations Code §56.003, which prohibits licensing authorities from taking disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract, including denying renewal. Since the Board is no longer required to deny the licensure renewal of such individuals, and is in fact prohibited from doing so, §5.75(d) is obsolete and contrary to the amended law. Therefore, the adopted rule repeals §5.75(d). Additionally, the adopted rule repeals the definitions for "Texas Guaranteed Student Loan Corporation" and "TGSLC" in §5.5. Since reference to these terms within the board's rules was limited to §5.75(d), continued definition of these terms is unnecessary under the adopted rule.

Summary of Comments and Agency Response. The Board did not receive any comments on the proposed rules.

SUBCHAPTER A. SCOPE; DEFINITIONS

22 TAC §5.5

Statutory Authority. Amended §5.05 is adopted under Texas Occupations Code §1051.202, which authorizes the board to adopt reasonable rules as necessary to regulate the practice of interior design and Tex. Occ. Code §56.003, which prohibits licensing authorities from taking disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract, including denying renewal.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002448

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


SUBCHAPTER D. CERTIFICATION AND ANNUAL REGISTRATION

22 TAC §5.75

STATUTORY AUTHORITY

Amended §5.75 is adopted under Tex. Occ. Code §1051.202, which authorizes the board to adopt reasonable rules as necessary to regulate the practice of interior design and Tex. Occ. Code §56.003, which prohibits licensing authorities from taking disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract, including denying renewal.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002449

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


CHAPTER 5. REGISTERED INTERIOR DESIGNERS

The Texas Board of Architectural Examiners (Board) adopts amendments to Texas Administrative Code Part 1, Title 22, §§5.36, 5.37, 5.158, and 5.162. Amended §§5.36, 5.37, and 5.162 are adopted without changes to the proposed text published in the March 27, 2020, issue of the Texas Register (45 TexReg 2117). Amended §5.158 is adopted with minor changes to the proposed text as published in the March 27, 2020, issue of the Texas Register (45 TexReg 2117).

Reasoned Justification.

The adopted rules implement House Bill 1342 (86th Regular Session, 2019). HB 1342 amended Chapter 53 of the Texas Occupations Code, which addresses the consequences of criminal actions with respect to occupational licenses. In summary, the HB 1342 amendments to Chapter 53 eliminated the authority of licensing authorities to take licensure action for certain criminal offenses and supplemented the procedural requirements for an agency considering licensure action as a consequence of criminal history.

Previously, the board adopted rules implementing Occupations Code Chapter 53 as it pertains to the registration and regulation of registered interior designers. The board adopts the following amendments to these rules in order to implement the changes imposed by HB 1342.

The board adopts amended §5.36, relating to Preliminary Evaluation of Criminal History for certain interested persons. The amended rule implements amended Tex. Occ. Code §53.051(1) by requiring the executive director to identify the statutorily-required factors that served as the basis for a determination that a person requesting an evaluation is ineligible for interior design registration.

The board adopts amended §5.37, relating to Provisional Licensure. The amended rule addresses the loss of authority in Tex. Occ. Code §53.021(a) for a licensing authority to take licensure action based on a conviction not directly related to the profession, provided it had been committed less than five years before the filing of an application. Formerly, §5.37 distinguished between crimes that were and were not committed within five years of the filing of an application in determining whether the board was required to issue an interior design registration to a candidate. Since this distinction is no longer relevant under amended Tex. Occ. Code §53.021, it is unnecessary for this distinction to be made in §5.37. Therefore, the amended rule does not reference this factor. Additionally, the amended rule replaces an obsolete reference to "§3g, Article 42.12, Code of Criminal Procedure,"in §5.37(a) with the updated reference to "Article 42A.054"of the same.

The board adopts amended §5.158, related to Criminal Convictions. Subsection (a) is amended to implement the loss of authority in Tex. Occ. Code §53.021(a) for a licensing authority to take licensure action based a conviction not directly related to the profession if it was committed less than five years before the filing of an application. Subsection (a) is also amended to include an updated reference to Article 42A.054, Code of Criminal Procedure, as discussed above. Adopted amendments to subsections (b)(3)&(4) implement changes to Tex. Occ. Code §§ 53.0231, 53.051(1), and 53.104(b) that require licensing authorities to observe certain procedures when considering licensure action for criminal history. Amended subsections (c) and (d) implement amended Tex. Occ. Code §§53.022 and 53.023, which clarifies and amends the factors that licensing authorities are required to consider in determining whether a conviction is directly related to the duties and responsibilities of a licensed occupation and, if so, whether licensure action should be taken. Subsection (h) is amended to implement changes to Tex. Occ. Code §53.051, relating to information that must be provided to a person subject to suspension, revocation, or denial of licensure.

The board adopts amended §5.162, relating to Deferred Adjudication. These amendments implement previous legislative changes to §53.021(d), which addresses the limited circumstances in which a licensing authority may consider deferred action criminal proceedings in licensing decisions. The proposed amendments adopt the limitations imposed under the law.

Summary of Comments and Agency Response. The Board did not receive any comments on the proposed rules.

SUBCHAPTER B. ELIGIBILITY FOR REGISTRATION

22 TAC §5.36, §5.37

STATUTORY AUTHORITY

Amended §5.36 and §5.37 are adopted under Tex. Occ. Code §1051.202, which authorizes the board to adopt reasonable rules as necessary to regulate the practice of interior design; Tex. Occ. Code §53.021, which identifies the categories of offenses that may be considered by a licensing authority in making licensing determinations; Tex. Occ. Code §53.0211, which governs the issuance of provisional licenses by a licensing authority; Tex. Occ. Code §§53.022 and 53.023, which identify the factors that a licensing authority must consider when determining whether a conviction directly relates to an occupation, and, if so, whether to take licensing action; and Texas Occ. Code Chapter 53, Subchapter D, which governs preliminary evaluations of criminal history by a licensing authority for certain interested persons.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002442

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


SUBCHAPTER H. PROFESSIONAL CONDUCT

22 TAC §5.158, §5.162

STATUTORY AUTHORITY

Amended §5.158 and §5.162 are adopted under Texas Occupations Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of interior design; Tex. Occ. Code §53.021, which identifies the categories of offenses that may be considered by a licensing authority in making licensing determinations; Tex. Occ. Code §§53.022 and 53.023, which identify the factors that a licensing authority must consider when determining whether a conviction directly relates to an occupation, and, if so, whether to take licensing action; and Tex. Occ. Code §§ 53.0231 and 53.051, which identify the procedural requirements that must be observed by a licensing authority that seeks to revoke or suspend a license or deny a license or an opportunity to be examined for licensure.

§5.158.Criminal Convictions. (a) Pursuant to Chapter 53, Texas Occupations Code and §2005.052, Texas Government Code, the Board may suspend or revoke an existing certificate of registration, disqualify a person from receiving a certificate of registration, issue a provisional license subject to the terms and limitations of §5.37 of this chapter (relating to Provisional Licensure), or deny to a person the opportunity to be examined for a certificate of registration because of the person's conviction for committing an offense if:

(1) the offense directly relates to the duties and responsibilities of a Registered Interior Designer;

(2) the offense is listed in Article 42A.054, Texas Code of Criminal Procedure; or

(3) the offense is a sexually violent offense, as defined by Article 62.001, Texas Code of Criminal Procedure.

(b) The following procedures will apply in the consideration of an application for registration as a Registered Interior Designer or in the consideration of a Registrant's criminal history:

(1) Effective January 1, 2014, each Applicant shall submit a complete and legible set of fingerprints to the Department of Public Safety or a vendor under contract with the Department for the purpose of obtaining criminal history record information from the Department and the Federal Bureau of Investigation. The Applicant shall pay the cost of conducting the criminal history background check to the Department or the vendor on behalf of the Department. An Applicant who does not submit fingerprints in accordance with this subsection is ineligible for registration.

(2) Effective January 1, 2014, each Registrant on active status or returning to active status who has not submitted a set of fingerprints pursuant to paragraph (1) of this subsection shall submit a complete and legible set of fingerprints to the Department of Public Safety or a vendor under contract with the Department for the purpose of obtaining criminal history record information from the Department and the Federal Bureau of Investigation. The Registrant shall pay the cost of conducting the criminal history background check to the Department or the vendor on behalf of the Department. A Registrant who does not submit fingerprints in accordance with this subsection is ineligible for renewal of, or returning to, active registration. A Registrant is not required to submit fingerprints under this paragraph for the renewal of, or returning to, active registration if the Registrant previously submitted fingerprints under paragraph (1) of this subsection for initial registration or under this paragraph for a previous renewal of, or return to, active registration.

(3) The executive director may contact the Applicant or Registrant regarding any information about a criminal conviction, other than a minor traffic offense, disclosed in the Applicant's or Registrant's criminal history record. If the executive director intends to pursue revocation or suspension of a registration, or denial of a registration or opportunity to be examined for a registration because of a person's prior conviction of an offense, the executive director must:

(A) provide written notice to the person of the reason for the intended denial; and

(B) allow the person not less than 30 days to submit any relevant information to the Board.

(4) The notice provided by the executive director under this subsection must contain:

(A) a statement that the person is disqualified from being registered or being examined for registration because of the person's prior conviction of an offense specified in the notice; or

(B) a statement that:

(i) the final decision of the Board to revoke or suspend the registration or deny the person a registration or the opportunity to be examined for the registration will be based on the factors listed in subsection (d) of this section; and

(ii) it is the person's responsibility to obtain and provide to the Board evidence regarding the factors listed in subsection (d) of this section.

(5) If the executive director determines the conviction might be directly related to the duties and responsibilities of a Registered Interior Designer, the Board's staff will obtain sufficient details regarding the conviction to allow the Board to determine the effect of the conviction on the Applicant's eligibility for registration or on the Registrant's fitness for continued registration.

(c) In determining whether a criminal conviction is directly related to the duties and responsibilities of a Registered Interior Designer, the executive director and the Board shall consider each of the following factors:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to practice Interior Design;

(3) the extent to which Interior Design registration might offer an opportunity to engage in further criminal activity of the same type as that in which the Applicant or Registrant had been involved;

(4) the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities of a Registered Interior Designer; and

(5) any correlation between the elements of the crime and the duties and responsibilities of a Registered Interior Designer.

(d) If the executive director or the Board determines under subsection (c) of this section that a criminal conviction directly relates to the duties and responsibilities of a Registered Interior Designer, the executive director and the Board shall consider the following in determining whether to suspend or revoke a registration, disqualify a person from receiving a registration, or deny to a person the opportunity to take a registration examination:

(1) the extent and nature of the Applicant's or Registrant's past criminal activity;

(2) the age of the Applicant or Registrant at the time the crime was committed;

(3) the amount of time that has elapsed since the Applicant's or Registrant's last criminal activity;

(4) the conduct and work activity of the Applicant or Registrant prior to and following the criminal activity;

(5) evidence of the Applicant's or Registrant's rehabilitation or rehabilitative effort while incarcerated or after release;

(6) evidence of the person's compliance with any conditions of community supervision, parole, or mandatory supervision; and

(7) other evidence of the Applicant's or Registrant's fitness to practice as a Registered Interior Designer, including letters of recommendation.

(e) Crimes directly related to the duties and responsibilities of a Registered Interior Designer include any crime that reflects a lack of fitness for professional licensure or a disregard of the standards commonly upheld for the professional practice of Interior Design, such as the following:

(1) criminal negligence;

(2) soliciting, offering, giving, or receiving any form of bribe;

(3) the unauthorized use of property, funds, or proprietary information belonging to a client or employer;

(4) acts relating to the malicious acquisition, use, or dissemination of confidential information related to Interior Design; and

(5) any intentional violation as an individual or as a consenting party of any provision of the Act.

(f) The Board shall revoke the certificate of registration of any Registrant who is convicted of any felony if the felony conviction results in incarceration. The Board also shall revoke the certificate of registration of any Registrant whose felony probation, parole, or mandatory supervision is revoked.

(g) If an Applicant is incarcerated as the result of a felony conviction, the Board may not approve the Applicant for registration during the period of incarceration. If an Applicant's felony probation, parole, or mandatory supervision is revoked, the Board may not approve the Applicant for registration until the Applicant successfully completes the sentence imposed as a result of the revocation.

(h) If the Board takes action against any Applicant or Registrant pursuant to this section, the Board shall provide the Applicant or Registrant with the following information in writing:

(1) the reason for rejecting the application or taking action against the Registrant's certificate of registration, including any factor considered under subsections (c) or (d) of this section that served as the basis for the action;

(2) notice that upon exhaustion of the administrative remedies provided by the Administrative Procedure Act, Chapter 2001, Government Code, an action may be filed in a district court of Travis County for review of the evidence presented to the Board and its decision. The person must begin the judicial review by filing a petition with the court within 30 days after the Board's decision is final; and

(3) the earliest date the person may appeal.

(i) All proceedings pursuant to this section shall be governed by the Administrative Procedure Act, Chapter 2001, Government Code.

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

Filed with the Office of the Secretary of State on June 18, 2020.

TRD-202002443

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Effective date: July 8, 2020

Proposal publication date: March 27, 2020

For further information, please call: (512) 305-8519


PART 9. TEXAS MEDICAL BOARD

CHAPTER 166. PHYSICIAN REGISTRATION

22 TAC §166.2

The Texas Medical Board (Board) adopts amendments to Title 22, Part 9, §166.2, concerning Continuing Medical Education, with non-substantive changes to the proposed text as published in the March 27, 2020, issue of the Texas Register (45 TexReg 2120). The adopted rule will be republished.

The amendments are adopted in order to implement new continuing education requirements set forth by H.B. 2059, H.B. 2174, H.B. 2454, and H.B. 3285, passed by the 86th Legislature, Regular Session (2019). The new language requires that physicians complete at least two hours of continuing medical education (CME) training in topics related to pain management, and the prescription of opioids and other controlled substances. Additionally, the amendments add language requiring a course in the topic of human trafficking prevention. The new courses are to be completed as part of the formal course hours required each biennial registration period. Other changes adopted to 166.2 are made to reorganize and format the rule.

The Board received one written comment regarding the proposed amendments from the Texas Medical Association (TMA). No one appeared at the TMB meeting on June 12, 2020 to provide oral comment regarding the amendments to the rule.

A summary of TMA's comments and the Board responses follow.

Comment: TMA expressed some support for the rule, but opposed several aspects, recommending that the rules be adopted with changes.

First, TMA requested that the new course requirements related to pain management and prescribing of opioids and other controlled substances be required for only physicians engaged in pain management or those who prescribe controlled substances or opioids. TMA asserted that requiring such courses for physicians who do not engage such practice is contrary to legislative intent, does not meet the state's goals related to addressing the opioid crisis, and unnecessarily increases continuing education costs for those physicians.

Response: TMB disagrees and declines to adopt the amendments with that change. The nature and scope of the opioid crisis calls for all physicians to obtain the most up to date and important information related to pain management and the prescribing of opioids and other controlled substances. While Texas has made important strides in battling the opioid crisis, it remains a critical issue in this state. Opioid abuse accounts for more than half of all drug overdose deaths in Texas. See Addressing Substance Abuse in Texas, Public Health Agency Action Plan, The Texas Department of State Health Services, pg. 2, January 2020 (found at: https://www.dshs.state.tx.us/substance-use-action-plan/). The number of Texas adults reporting non-medical use of pain relievers in the last year increased at an "alarming rate", from 779,000 in 2009-2010 to 830,000 in 2016-2017, Addressing Substance Abuse in Texas, pg. 2.

Requiring the courses related to pain management and prescribing opioids/controlled substances for all physicians, rather than creating a difficult to follow set of rules based on variables such as license issuance date, license renewal date, type of practice and issuance of DEA registration, will also improve agency efficiency related to auditing compliance with the rule. Ultimately, the adopted rule will better protect the public and fulfill legislative intent.

Comment: Second, TMA requested that the Board permit any extra "opioid CME" credit hours to roll to the next renewal period, stating that the existing language includes appropriate limitations on how long credit can be rolled into another renewal period, eliminating concern that the information will be outdated. TMA asserted that allowing such hours to roll forward into the next renewal period will also provide physicians incentive to explore additional opioid CME besides just the two credit hours.

Response: TMB declines to make this change. Allowing carry forward hours in the topic will present a risk that physicians will not obtain the most up to date information each renewal period. TMB maintains that such is contrary to legislative intent and an unacceptable risk, especially considering the nature of the opioid crisis. The number of hours required is nominal and is unlikely to discourage physicians from obtaining additional CME beyond the two hours required.

Comment: Third, TMA states that it assumes that extensions on licensure renewals granted due to the COVID-19 disaster "will act as an extension for physicians to meet these new CME requirements as well." Alternatively, TMA requests that TMB include language making the new requirements effective September 1, 2020.

Response: TMB agrees that the extensions on licensure renewals related to the COVID-19 disaster also will apply to the new CME requirements. TMB CME audits will take the extensions granted into account and apply them to the new CME requirements. TMB declines to include language setting forth a future effective date, as TMB's internal audit processes will include a consideration of extensions granted.

Comment: Fourth, TMA requested that TMB change language to proposed subparagraph 166.2(a)(3)(E), to better clarify that hours can be dually used to meet the new pain management and prescribing CME requirements and the medical ethics and/or professional responsibility requirement and indicate that TMB "shall" designate such courses in that manner rather than "may."

Response: TMB declines to make this change. While TMB agrees that the new pain management and prescribing CME hours may be dually used to meet the medical ethics and/or professional responsibility requirement, the language adopted reflects the wording of the respective bills.

Comment: Fifth, TMA opposed not allowing for a presumption of compliance for physicians meeting Maintenance of Certification (MOC) or Osteopathic Continuous Certification (OCC) program requirements for specialty board certification by member boards of the ABMS or AOA under subsection (d), asserting that Section 156.052 of the Texas Occupations Code permits such presumption of compliance and asking that TMB clarify the distinction made under the rules.

TMB disagrees and declines to make the change. The distinction between achieving initial certification and recertification and meeting MOC/OCC program requirements has been in the continuing education rules since approximately 2015.

The rules recognize that Section 156.052's presumption of compliance applies to physicians obtaining initial or recertification by a specialty board of the AOA or ABMS within 36 months from the required date of renewal, and only for one registration renewal period. The presumption of compliance applies to all continuing education requirements, including the new courses.

The second type of compliance presumption (created in 2015) recognizing a physician's meeting MOC/OCC ongoing program requirements, is contingent upon the physician also showing that the MOC/OCC continuing education requirements meet the formal requirements under (a)(1). The MOC/OCC compliance presumption is unlimited in the number of registration periods that a physician may obtain the presumption. As MOC/OCC program continuing education requirements between the dozens of specialty member boards vary widely in content and minimum quantity required, this presumption has never been extended to the ethics/professionalism requirements and for the same reason will not be extended to the new course requirements.

TMB declines TMA's request to adopt changes to the proposed amendments so that physicians meeting ongoing MOC/OCC requirements are presumed to have taken the new courses. The effect of adopting such language would be to risk creating the possibility in which a physician meeting MOC/OCC program requirements may obtain a presumption of compliance for an unlimited number of registration periods, without having to complete any hours in the new topics set forth by the 86th Legislature.

Comment: Finally, TMA suggested drafting revisions to address two typographical errors and some rewording of language related to sexual assault forensic exam continuing education.

Response: TMB appreciates those comments and adopts the rules with non-substantive drafting revisions to correct the typographical errors and a slight rewording to the sexual assault forensic exam continuing education requirements.

The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to adopt rules necessary to administer and enforce the Medical Practice Act. The amendments are further adopted under the authority of House Bills 2059, 2174, 2454, and 3285, 86th Legislature, Regular Session (2019).

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

§166.2.Continuing Medical Education.

(a) As a prerequisite to the registration of a physician's permit a physician must complete 48 credits of continuing medical education (CME) every 24 months. CME credits must be completed in the following categories and topics:

(1) At least 24 credits every 24 months are to be from formal courses that are:

(A) designated for AMA/PRA Category 1 credit by a CME sponsor accredited by the Accreditation Council for Continuing Medical Education or a state medical society recognized by the Committee for Review and Recognition of the Accreditation Council for Continuing Medical Education;

(B) approved for prescribed credit by the American Academy of Family Physicians;

(C) designated for AOA Category 1-A credit required for osteopathic physicians by an accredited CME sponsor approved by the American Osteopathic Association;

(D) approved by the Texas Medical Association based on standards established by the AMA for its Physician's Recognition Award; or

(E) approved by the board for medical ethics and/or professional responsibility courses only.

(2) At least two of the 24 formal credits of CME which are required by paragraph (1) of this subsection must involve the study of medical ethics and/or professional responsibility. Whether a particular credit of CME involves the study of medical ethics and/or professional responsibility shall be determined by the organizations which are enumerated in paragraph (1) of this subsection as part of their course planning.

(3) At least two of the 24 formal credits of CME which are required by paragraph (1) of this subsection must involve the study of the following topics:

(A) best practices, alternative treatment options, and multi-modal approaches to pain management that may include physical therapy, psychotherapy, and other treatments;

(B) safe and effective pain management related to the prescription of opioids and other controlled substances, including education regarding:

(i) standards of care;

(ii) identification of drug-seeking behavior in patients; and

(iii) effectively communicating with patients regarding the prescription of an opioid or other controlled substances; and

(C) prescribing and monitoring of controlled substances.

(D) For physicians practicing in pain clinics, the hours required under this subparagraph shall be credited towards the 10 hours of required continuing medical education related to pain management required under 22 TAC Chapter 195.4(e), relating to Operation of Pain Management Clinics.

(E) The hours required under this subparagraph may be designated for medical ethics or professional responsibility credit for purposes of compliance with paragraph (2) of this subsection.

(4) As part of the 24 formal credits of CME required under paragraph (1) of this subsection, a course in human trafficking prevention approved by the executive commissioner of the Texas Health and Human Services Commission must be completed. The course shall be designated by the board for medical ethics or professional responsibility credit for the purposes of compliance with paragraph (2) of this subsection.

(5) The remaining 24 credits for the 24-month period may be composed of informal self-study, attendance at hospital lectures, grand rounds, or case conferences not approved for formal CME, and shall be recorded in a manner that can be easily transmitted to the board upon request.

(6) A physician who performs sexual assault forensic examinations must have basic forensic evidence collection training or the equivalent education. A physician who completes a CME course in forensic evidence collection that:

(A) meet the requirements described in paragraph (1)(A) - (C) of this subsection; or

(B) is approved or recognized by the Texas Board of Nursing, is considered to have the basic forensic evidence training required by the Health and Safety Code, §323.0045.

(7) A physician may complete one credit of formal continuing medical education, as required by paragraph (1) of this subsection, for each hour of time spent up to 12 hours, based on participation in a program sponsored by the board and approved for CME credit for the evaluation of a physician competency or practice monitoring.

(8) A physician whose practice includes the treatment of tick-borne diseases should complete CME in the treatment of tick-borne diseases that meet the requirements described in paragraph (1)(A) - (E) of this subsection.

(b) A physician must report on the registration permit application if she or he has completed the required CME during the previous 2 years.

(1) A physician may carry forward CME credits earned prior to a registration report which are in excess of the 48-credit biennial requirement and such excess credits may be applied to the following years' requirements, except that excess credits may not be applied to requirements set forth under paragraphs (2) and (3) of subsection (a).

(2) A maximum of 48 total excess credits may be carried forward and shall be reported according to the categories set out in subsection (a) of this section, subject to the limitations established under paragraph (1) of this subsection.

(3) Excess CME credits of any type may not be carried forward or applied to a report of CME more than two years beyond the date of the registration following the period during which the credits were earned.

(c) A physician shall be presumed to have complied with this section if in the preceding 36 months the physician becomes board certified or recertified by a specialty board approved by the American Board of Medical Specialties (ABMS) or the American Osteopathic Association Bureau of Osteopathic Specialists (AOA). This provision exempts the physician from all CME requirements, including the requirement for two credits involving the study of medical ethics and/or professional responsibility, as outlined in subsection (a)(2) of this section. This exemption is valid for one registration period only.

(d) Maintenance of Certification, Presumption of Compliance.

(1) Except as otherwise provided in this subsection, a physician shall be presumed to have complied with subsection (a)(1) and (5) of this section if the physician is meeting the Maintenance of Certification (MOC) program requirements set forth by a specialty or subspecialty member board of the ABMS or the Osteopathic Continuous Certification (OCC) program requirements set forth by the AOA, and the member board's MOC or OCC program mandates completion of CME credits that meet the minimum criteria set forth under subsection (a)(1) of this section.

(2) Notwithstanding paragraph (1) of this subsection, a physician's compliance with an MOC program will not be credited toward the requirements set forth under paragraphs (2), (3), and (4) of subsection (a).

(e) A physician may request in writing an exemption for the following reasons:

(1) the physician's catastrophic illness;

(2) the physician's military service of longer than one year's duration outside the state;

(3) the physician's medical practice and residence of longer than one year's duration outside the United States; or

(4) good cause shown submitted in writing by the physician, which provides satisfactory evidence to the board that the physician is unable to comply with the requirement for CME.

(f) Exemptions are subject to the approval of the executive director or medical director and must be requested in writing at least 30 days prior to the expiration date of the permit.

(g) A temporary exemption under subsection (d) of this section may not exceed one year but may be renewed, subject to the approval of the board.

(h) Subsection (a) of this section does not apply to a physician who is retired and has been exempted from paying the registration fee under §166.3 of this title (relating to Retired Physician Exception).

(i) This section does not prevent the board from taking board action with respect to a physician or an applicant for a license by requiring additional credits of CME or of specific course subjects.

(j) The board may require written verification of both formal and informal credits from any physician within 30 days of request. Failure to provide such verification may result in disciplinary action by the board.

(k) Residency or Fellowship Training Completion, Presumption of Compliance.

(1) Except as otherwise provided in this subsection, physicians in residency/fellowship training or who have completed such training within six months prior to the registration expiration date will satisfy the requirements of subsection (a)(1) and (2) of this section by their residency or fellowship program.

(2) Notwithstanding paragraph (1) of this subsection, completion of training in a residency or fellowship within six months prior to the registration expiration date will not be credited toward requirements set forth under paragraphs (3) and (4) of subsection (a).

(l) CME credits which are obtained during the 30-day grace period after the expiration of the physician's permit to comply with the CME requirements for the preceding two years, shall first be credited to meet the CME requirements for the previous registration period and then any additional credits obtained shall be credited to meet the CME requirements for the current registration period.

(m) A false report or false statement to the board by a physician regarding CME credits reportedly obtained shall be a basis for disciplinary action by the board pursuant to the Medical Practice Act (the "Act"), Tex. Occ. Code Ann. §§164.051 - 164.053. A physician who is disciplined by the board for such a violation may be subject to the full range of actions authorized by the Act including suspension or revocation of the physician's medical license, but in no event shall such action be less than an administrative penalty of $500.

(n) Administrative penalties for failure to timely obtain and report required CME credits may be assessed in accordance with §§187.75 - 187.82 of this title (relating to Imposition of Administrative Penalty) and §190.14 of this title (relating to Disciplinary Sanction Guidelines).

(o) Unless exempted under the terms of this section, failure to obtain and timely report the CME credits on a registration permit application shall subject the physician to a monetary penalty for late registration in the amount set forth in §175.3 of this title (relating to Penalties). Any administrative penalty imposed for failure to obtain and timely report the 48 credits of CME required for a registration permit application shall be in addition to the applicable penalties for late registration as set forth in §175.3 of this title.

(p) A physician, who is a military service member, may request an extension of time, not to exceed two years, to complete any continuing medical education requirements.

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

Filed with the Office of the Secretary of State on June 22, 2020.

TRD-202002461

Scott Freshour

General Counsel

Texas Medical Board

Effective date: July 12, 2020

Proposal publication date: March 27, 2020

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


CHAPTER 172. TEMPORARY AND LIMITED LICENSES

SUBCHAPTER C. LIMITED LICENSES

22 TAC §172.13

The Texas Medical Board (Board) adopts amendments to Title 22, Part 9, §172.13, concerning Conceded Eminence with non-substantive changes, as described below, to the proposed text as published in the March 27, 2020, issue of the Texas Register (45 TexReg 2123). The adopted rule will be republished.

Section 172.13, relating to Conceded Eminence, was amended to add language to clarify the requirements for and process to obtain conceded eminence. Superfluous language is deleted. The rule was also reorganized and renumbered for clarity.

Subsection (c) lists qualifications the Board shall consider in determining whether an applicant has recognized conceded eminence and authority in the applicant's specialty. Examination requirements have been deleted from subsection (c) and expanded upon in subsection (e).

Subsection (d) lists requirements to be shown in an application for conceded eminence. Consideration for foreign applicants who may not be able to maintain a foreign license or certificate has been made in paragraph (1)(B).

Subsection (e) lists examination requirements. Previously, subsection (c)(3) required that an applicant not have failed a licensing examination within a three-attempt limit. Subsection (e)(2) is now expanded, based on stakeholder input, to accept examinations not only accepted by the board for licensure, but also accepted for licensure in another state, territory, Canadian province, or country, or accepted for specialty board certification.

Subsection (f) lists additional requirements and documentation necessary for a conceded eminence application. Based on stakeholder input, paragraph (3) adds a substantial equivalence analysis for subspecialty training programs that have received ACGME accreditation after the applicant's participation.

Subsections (g) through (l) contains information and requirements listed in the Texas Occupations Code Annotated, §155.006, previously contained in the rule.

The Board sought stakeholder input through the Licensure Stakeholder Group which made comments on the proposed changes to the rules that were incorporated in the proposed text.

The Board received one written comment, which contained multiple parts, regarding the proposed amendments from the Texas Medical Association (TMA). A summary of the TMA comment, and the Board responses, follows.

In their first comment, TMA recommended that, in subparagraph (c)(1)(d), a semicolon be used at the end of the sentence instead of a period. The Board agrees and has incorporated this non-substantive change into the adopted amendments.

In their second comment, TMA recommended the use of the word "continually" in subparagraph (d)(1)(B)(ii) instead of the word "continuously." The Board disagrees and made no change in response to this comment. The Board used the word "continuously" intentionally.

In their third comment, TMA noted that the words "domestic," "international," and "national" are used in the rule. TMA recommended using the same phrase throughout the rule - either "international/national" or "international/domestic." The Board disagrees and made no change in response to this comment. Each word was used intentionally in the context of its usage.

In the first part of their fourth comment, TMA notes that language in subsection (a) may be inconsistent with the language in subparagraph (d)(1)(B)(i). Subsection (a) contemplates conceded eminence for someone "licensed or educated in another state, territory, Canadian province or country" while subparagraph (d)(1)(B)(i) contemplates conceded eminence for a foreign medical graduate who is licensed by another state, territory, Canadian province or country. The Board disagrees and made no change in response to this comment, as the Board does not believe the language is inconsistent.

In the second part of their fourth comment, TMA notes that language in subparagraph (d)(1)(B)(i) is confusing about a foreign license or certificate being issued by the United States. The Board agrees and has made clarifying changes to the language adopted in that subparagraph in response to the comment.

In the third part of their fourth comment, TMA asks whether some portion of the required 10 years of practice referenced in subparagraph (d)(1)(B)(i) should occur in the United States. The Board made no change in response to this comment, as the requirement as proposed was drafted intentionally.

In the first part of their fifth comment, TMA points out that language in paragraph (f)(1) as proposed implied Texas physicians are licensed by specialty area. The Board agrees and has made clarifying changes to the language adopted in that paragraph in response to the comment.

In the second part of their fifth comment, TMA suggests adding language in paragraph (f)(5) to ensure "subject to disciplinary action" means disciplinary action relating to the applicant's licensure. TMA also suggests adding language that the applicant has not been the subject of disciplinary action by any territory, foreign state, Canadian province, or another country in which they held or hold a medical license. The Board agrees and has made clarifying changes to the language adopted in that paragraph in response to the comment.

In their sixth comment, TMA suggests adding language in paragraph (g)(1) clarifying that the licensed physician supervising the medical services of the applicant must be a Texas-licensed physician. The Board agrees and has made clarifying changes to the language used in that paragraph in response to the comment.

In their last comment, TMA recommended a number of small changes. First, they recommended adding a semicolon at the end of subparagraph (d)(1)(B). The Board disagrees and made no change in response to this comment, as a semicolon would be grammatically incorrect.

Second, TMA recommended the addition of the word "Science" to "The University of Texas Health Science Center at Tyler" in subparagraph (d)(2)(B). The Board agrees and added the word "Science," which was inadvertently left out of the proposed text.

Third, TMA recommended adding the word "the" to the phrase "evident that applicant" in subsection (e). The Board agrees and added the word "the," which was inadvertently left out of the proposed text.

Lastly, TMA recommended using lowercase letters to begin paragraphs (g)(1) and (g)(2). The Board agrees and changed the case of the beginning letters of paragraphs (g)(1) and (g)(2) in the adopted amendments.

The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to recommend and adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine; and enforce this subtitle. Additionally, the amendments are adopted under the authority of the Texas Occupations Code Annotated, §155.006, which provides authority for the Board to recommend and adopt rules related to the issuance of a limited license issued to an applicant by virtue of the applicant's conceded eminence and authority in the applicant's specialty.

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

§172.13.Conceded Eminence. (a) Pursuant to the authority of §155.006, Texas Occupations Code, the board may issue a limited license to an applicant licensed or educated in another state, territory, Canadian province or country conceded eminence and authority in the applicant's specialty.

(b) "Conceded eminence and authority in the applicant's specialty," as used in this section, shall mean that the physician has achieved a high level of academic or professional recognition, domestically or internationally, for excellence in research, teaching, or the practice of medicine within the applicant's specialty.

(c) In determining whether an applicant has recognized conceded eminence and authority in the applicant's specialty, the Board shall consider whether:

(1) the applicant has been the recipient of professional honors and awards, and professional recognition in the international or domestic medical community, for achievements, contributions, or advancements in the field of medicine, or medical research as evidenced by objective factors, including, but not limited to:

(A) publications in recognized scientific, medical, or medical research journals, including American peer review journals;

(B) being the recipient or nominee for international or national awards for distinguished contributions to the advancement of medicine or medical research;

(C) acknowledgement of expertise from recognized American authorities in the applicant's field of medical specialty; and

(D) other professional accomplishments as determined meritorious in the discretion of the Board;

(2) the recommending institution is unable to recruit, after good faith effort, a physician with the same sub-specialty who is: either already licensed in Texas or is eligible for an unrestricted license in Texas; and

(3) other full licensure options are available to the applicant.

(d) An applicant must complete an application and present satisfactory proof to the board that the applicant:

(1) is a graduate of:

(A) a medical school which is recognized or accredited by the Liaison Committee on Medical Education (LCME) of the Association of American Medical Colleges, Royal College of Physicians in Canada or the American Osteopathic Association (AOA); or

(B) a foreign medical school and

(i) holds a valid medical license or registration certificate issued by a state or territory in the United States or a valid foreign medical license or registration certificate issued by another country or Canadian province on the basis of a foreign examination, and has practiced medicine for at least 10 years, 5 years of which occurred immediately preceding the date applications is made to the Board; or

(ii) held a valid foreign medical license or certificate at the time of coming to the United States and has since continuously worked under a Faculty Temporary License; and

(2) is recommended to the board by the dean, president, or chief academic officer of:

(A) a school of medicine in this state accredited by the LCME or AOA;

(B) The University of Texas Health Science Center at Tyler;

(C) The University of Texas M.D. Anderson Cancer Center; or

(D) a program of graduate medical education, accredited by the Accreditation Council for Graduate Medical Education, that exceeds the requirements for eligibility for first board certification in the discipline; and

(3) is expected to receive an appointment at the institution or program making the recommendation under paragraph (2) of this subsection; and

(4) has demonstrated conceded eminence and authority in a medical specialty identified in the application.

(e) Examination Requirements. An applicant must submit evidence that the applicant:

(1) has passed the Texas Medical Jurisprudence Examination; and

(2) has passed an examination that is:

(A) accepted by the board for licensure as defined in §163.6(a) of this title, (relating to Examinations Accepted for Licensure) and has not exceeded the number of failed attempts allowed for a licensing exam as provided by §163.6(b) of this title; or

(B) accepted for physician licensure in another state, territory, Canadian province, or country; or

(C) accepted for specialty board certification by:

(i) the American Board of Medical Specialties; or

(ii) the American Osteopathic Association.

(f) Additional requirements and documentation for Conceded Eminence License. An applicant:

(1) must submit 3 letters of recommendation from Texas-licensed physicians who practice in the same specialty area as the applicant and who shall attest to the candidate's conceded eminence qualifications, character, and ethical behavior;

(2) must submit 5 letters from renowned specialists in the applicant's discipline who attest to the applicant's eminence and qualifications;

(3) has successfully completed at least one year of approved subspecialty training accredited by the Accreditation Council for Graduate Medical Education (ACGME) or the American Osteopathic Association (or has completed a substantially equivalent program that has since received ACGME accreditation);

(4) has not been convicted of, or placed on deferred adjudication, community supervision, or deferred disposition for a felony, a misdemeanor connected with the practice of medicine, or a misdemeanor involving moral turpitude;

(5) has not been the subject of disciplinary action related to the practice of medicine by any other state; the uniformed services of the United States; the applicant's peers in a local, regional, state, or national professional medical association or staff of a hospital; or a territory, Canadian province, or other country in which the applicant holds or has held a medical license or registration certificate;

(6) is of good professional character, as defined by §163.1(a)(8) of this title (relating to Definitions); and

(7) has read and will abide by board rules and the Medical Practice Act.

(g) Supervision. The Board may require an applicant to submit:

(1) the name of a Texas-licensed physician, in good standing, who will supervise the medical services provided by the applicant for the first 6 months of practice; and

(2) a detailed description of the medical services, duties, and responsibilities that the applicant will perform.

(h) Applicants with complete applications may qualify for a Temporary License prior to being considered by the board for licensure, as required by §172.11 of this title (relating to Temporary Licensure--Regular).

(i) The holder of a conceded eminence license shall be limited to the practice of only a specialty of medicine for which the license holder has conceded eminence and authority, as identified in the application. The license holder may only practice medicine within the setting of the institution or program that recommended the license holder under subsection (d)(3) of this section, including a setting that is part of the institution or program by contractual arrangement.

(j)If the holder of a conceded eminence license terminates the relationship with the institution or program that recommended the license holder under subsection (d)(3) of this section, the conceded eminence license shall be considered automatically canceled. To practice medicine in Texas, the license holder must:

(1) file a new application with the recommendation of a new institution or program, as required by subsection (d)(3) of this section; or

(2) file an application for another Texas medical license or permit.

(k) The holder of a conceded eminence license shall be required to pay the same fees and meet all other procedural requirements for issuance and renewal of the license as a person holding a full Texas medical license.

(l) The holder of a conceded eminence license shall be subject to disciplinary action under the Medical Practice Act and board rules.

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

Filed with the Office of the Secretary of State on June 22, 2020.

TRD-202002474

Scott Freshour

General Counsel

Texas Medical Board

Effective date: July 12, 2020

Proposal publication date: March 27, 2020

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