TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 182. USE OF EXPERTS

The Texas Medical Board (Board) proposes amendments to Chapter 182, Use of Experts, 22 TAC §§182.1, 182.3, 182.5, and 182.8. The Board also proposes the repeal of §§182.2, 182.4, 182.6, and 182.7, for the purpose of restructuring Chapter 182.

Amendments and repeals in Chapter 182 are proposed as follows:

Section 182.1, relating to Purpose, is amended to clarify the scope of the rule and its applicability.

Section 182.2, relating to Board's Role, is repealed.

Section 182.3, relating to Definitions, is amended to clarify definitions relating to role, purpose, and scope of various professionals utilized by the board.

Section 182.4, relating to Use of Consultants, is repealed.

Section 182.5, relating to Expert Panel, is renamed "Expert Reviewer Qualifications" and amended to delete obsolete language and to change the order of identified certifying boards.

Section 182.6, relating to Use of expert witnesses, is repealed.

Section 182.7, relating to Interim Appointment, is repealed.

Section 182.8, relating to Expert Physician Reviewers, is amended to delete obsolete language regarding the processes and procedures applicable to the expert physician reviewers. The amendments to §182.8 implement the legislative mandate passed in HB 1504 (86th Regular Legislative Session) relating to expert panel reports and providing each reviewer report to the affected licensee and the content of each report. This amendment also adds language requiring notice to the panel when a case involves Complementary and Alternative Medicine.

Scott Freshour, General Counsel for the Texas Medical Board, has determined that for each year of the first five years the subsection as proposed is in effect the public benefit anticipated as a result of enforcing this proposal will be to provide greater information and due process to regulated licensees when addressing allegations of violations related to standard of care and other statutory violations.

Mr. Freshour has determined that for the first five-year period these rules are in effect, there will be no effect to individuals required to comply with these rules as proposed. There will be no effect on small businesses, micro businesses, or rural communities.

Pursuant to Texas Government Code §2006.002, the agency provides the following economic impact statement for the proposed rule amendments, and has determined that for each year of the first five years the proposed amendments will be in effect there will be no effect on small businesses, micro businesses, or rural communities. 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 the agency has determined that for each year of the first five years these rule amendments, as proposed, are in effect:

(1) there will be no additional estimated cost to the state or to local governments expected as a result of enforcing or administering the rules;

(2) there are no estimated reductions in costs to the state or to local governments as a result of enforcing or administering the rules;

(3) there is no estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the rules; 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 rules.

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 amendments and repeals do not create or eliminate a government program.

(2) Implementation of the proposed amendments and repeals does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed amendments and repeals does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed amendments and repeals do not require an increase or decrease in fees paid to the agency.

(5) The proposed rulemaking creates new regulations as described above.

(6) The proposed rulemaking does repeal existing regulations as described above. The proposed rule does not expand or limit an existing regulation.

(7) The proposed rulemaking increases the number of individuals subject to the rules' applicability.

(8) The proposed rulemaking does 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-mailed to: rules.development@tmb.state.tx.us. A public hearing will be held at a later date.

22 TAC §§182.1, 182.3, 182.5, 182.8

The amendments are proposed 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.

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

§182.1.Purpose.

Pursuant to §§154.056 - 154.0561 of the Medical Practice Act, the board is authorized to adopt rules relating to the use of expert physicians reviewers in the review of complaints involving standard of care [medical competency]. This chapter is promulgated to establish procedures, qualifications and duties of those professionals serving as expert physician reviewers [panel members, consultants and expert witnesses to the board].

§182.3.Definitions.

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

(1) Specialist [Consultant]--An individual with specialized knowledge or training selected by the agency to review and report on alleged non-standard of care complaints [and investigations and provide monitoring of compliance issues].

[(2) Expert Physician Panel (or Expert Panel)--Physicians appointed by the board who may serve as Expert Physician Reviewers.]

(2) [(3)] Expert Physician Reviewer (or Reviewer)--A qualified physician approved by the board as part of an [member of the] Expert Physician Panel [selected] to review and report on [consider a particular complaint involving] alleged violations of the standard of care as set out in §154.0561 and §154.058(b) [§154.058] of the Act.

(3) [(4)] Expert Witness--An individual with specialized knowledge or training who contracts with the board to provide [expert] opinions, testimony or other services in contested cases or temporary suspension proceedings [in the investigation and resolution of disciplinary matters].

§182.5.Expert [Panel] Reviewer Qualifications.

(a) [Physicians may be appointed by the board to the Expert Panel as follows:]

[(1) Composition. The Expert Panel shall be composed of physicians approved by the board to act as Expert Physician Reviewers.]

[(2) Qualifications.] To be eligible to serve on the Expert Panel, a physician must meet the following criteria:

(1) [(A)]licensed to practice medicine in Texas;

(2) [(B)]certification by [the American Board of Oral and Maxillofacial Surgery or] an organization that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists or the American Board of Oral and Maxillofacial Surgery;

(3) [(C)]no history of licensure restriction;

(4) [(D)]no history of peer discipline;

(5) [(E)]acceptable malpractice complaint history; and

(6) [(F)]in active practice as defined by §163.11 of this title (relating to the Active Practice of Medicine).

(b) Term; Resignation; Removal.

(1) An Expert Physician Reviewer shall serve on the Expert Panel until resignation or removal from the Expert Panel.

(2) An Expert Physician Reviewer may resign from the Expert Panel at any time.

(3) An Expert Physician Reviewer may be removed from the Expert Panel for good cause at any time on order of the Executive Director. Good cause for removal includes:

(A) failure to maintain the eligibility requirements set forth above;

(B) failure to inform the board of potential or apparent conflicts of interest;

(C) repeated failure to timely review complaints or timely submit reports to the board;

(D) repeated failure to prepare the reports in the prescribed format.

(c) Duties of the Expert Physician Panel. The Expert Physician Panel members will assist the board with complaints, investigations, and disciplinary actions relating to medical competency.

§182.8.Expert Physician Reviewers.

(a) Selection of Reviewers. Any complaint alleging a possible violation of the standard of care will be referred to Expert Physician Reviewers who will review all the medical information and records collected by the board and shall report findings in the prescribed format.

(1) Reviewers shall be randomly selected from among those Expert Panel members who practice in the same specialty as the physician who is the subject of the complaint. The practice area or specialty declared by the subject physician as his area of practice may be the specialty of the expert reviewers.

(2) If there are no Expert Panel Members in the same specialty or if the randomly selected Reviewer has a potential or apparent conflict of interest that would prevent the Reviewer from providing a fair and unbiased opinion, that Reviewer shall not review the case and another Reviewer shall be randomly selected from among those Expert Panel members who practice in the same or similar specialty as the physician who is the subject of the complaint, after excluding the previously selected Reviewer.

(A) A potential conflict of interest exists if the selected Reviewer practices medicine in the same geographical medical market as the physician who is the subject of the complaint; and

(i) is in direct competition with the physician; [or]

(ii) knows the physician; or

(iii) has treated or examined any of the patients at issue.

(B) An apparent conflict of interest exists if the Reviewer:

(i) has a direct financial interest or relationship with any matter, party, or witness that would give the appearance of a conflict of interest;

(ii) has a familial relationship within the third degree of affinity with any party or witness; or

(iii) determines that the Reviewer has knowledge of information that has not been provided by the Board and that the Reviewer cannot set aside that knowledge and fairly and impartially consider the matter based solely on the information provided by the Board.

(3) Notwithstanding the provisions of subsection (a)(2) of this section, if no Reviewer agrees to review the case who can qualify under the requirements of that subsection, a Reviewer who has a potential conflict may review the case, provided the Expert Reviewers' Report discloses the nature of the potential conflict.

(4) If any selected Reviewer has a potential or apparent conflict of interest, the Reviewer shall notify board staff of the potential or apparent conflict.

(b) Procedures for Expert Physician Review. The procedure for the use of Reviewers shall comply with §154.0561, Texas Occupations Code. Reviewers shall be specifically informed that they may communicate with other Reviewers selected to review the case and that they should communicate with other Reviewers to attempt to reach a consensus.

(c) Expert Reviewers' Reports. A report shall be prepared by [the] each Expert Physician Reviewer. Each Reviewer's report must include the specialty area of Reviewer. Any other biographical information must be redacted. [Reviewers to include the following:]

(1) The First Reviewers' report must include: [the specialty area of each Reviewer; and]

[(2) the opinions agreed to by at least a majority of the Reviewers regarding:]

(A) relevant facts concerning the medical care rendered;

(B) applicable standard of care;

(C) application of the standard of care to the relevant facts;

(D) a determination of whether the standard of care has been violated;

(E) the clinical basis for the determinations, including any reliance on peer-reviewed journals, studies, or reports; and

(F) the summation of the Reviewer opinion.

(2) The Second Reviewers' must do a complete review of the First Reviewers' report.

(3) The Second Reviewers' report may:

(A) concur with and adopt the First Reviewer's report as if it was their own report;

(B) concur in part and disagree in part with First Reviewers' report and state in writing the basis for the disagreement; or

(C) disagree with First Reviewers' report, and state in writing the basis for the disagreement.

(4) In the event of partial disagreement between the first two reviewers, the report will be sent back to the First Reviewer to determine if a consensus can be reached on the differing opinion.

(5) A Third Reviewers' report will only be required if First and Second Reviewers cannot reach a consensus. The Third Reviewer must do a complete review of the First and Second Reviewer reports; concur with and adopt the First Reviewer's report as if it was their own report;

(6) The Third Reviewers' report may:

(A) concur with and adopt either the First Reviewer's or Second Reviewer's report as if it was their own report; or

(B) write their own concurring report with either the First Reviewer's or Second Reviewer's report. A concurring report must include:

(i) relevant facts concerning the medical care rendered;

(ii) applicable standard of care;

(iii) application of the standard of care to the relevant facts;

(iv) a determination of whether the standard of care has been violated;

(v) the clinical basis for the determinations, including any reliance on peer-reviewed journals, studies, or reports; and

(vi) the summation of the Reviewer opinion.

(d) For each Expert Reviewers' Report that involves Complementary or Alternative Medicine (CAM) issues, Board staff shall insert immediately below Expert Reviewer's specialty in bold letters, "This review involves Complementary or Alternative Medicine."

(e) An Expert Reviewers' Report shall be deemed "investigative information" and an "investigative report" and is privileged and confidential, in accordance with §164.007(c).

(f) [(3)] Each Expert Reviewer Report shall have the following Notice to Respondent: "PURSUANT TO §164.007 OF THE MEDICAL PRACTICE ACT, THIS DOCUMENT CONSTITUTES INVESTIGATIVE INFORMATION AND IS PRIVILEGED AND CONFIDENTIAL. THE EXPERT REVIEWER REPORTS (REPORTS) ARE STATUTORILY LIMITED FOR USE AT THE INFORMAL PROCEEDING ONLY, UNDER TEXAS OCCUPATIONS CODE, SECTION 164.003(f). THE REVIEWERS' REPORTS ARE REQUIRED TO BE PROVIDED TO THE LICENSEE UNDER SECTION 164.003(f). THE REPORTS REMAIN CONFIDENTIAL AND PRIVILEGED UNDER SECTION 164.003(h) AND 164.007(c). THE REPORTS CANNOT BE RELEASED TO ANY PERSON OR ENTITY WITHOUT THE CONSENT OF THE BOARD. THE REPORTS CANNOT BE OFFERED, UTILIZED, OR SUBMITTED AS EVIDENCE OR DOCUMENTS IN A CONTESTED CASE PROCEEDING BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS OR IN ANY LEGAL PROCEEDING." [THIS DOCUMENT IS PROVIDED FOR USE AT THE INFORMAL SETTLEMENT CONFERENCE ONLY AND MAY NOT BE USED FOR ANY OTHER PURPOSE. THIS DOCUMENT IS NOT SUBJECT TO OPEN RECORDS REQUESTS AND IS NOT ADMISSIBLE AS EVIDENCE IN ANY CIVIL JUDICIAL OR ADMINISTRATIVE PROCEEDING. THIS DOCUMENT MAY NOT BE USED BY OR DISSEMINATED BY ANY LICENSEE OR THEIR REPRESENTATIVE IN ANY CONTESTED CASE PROCEEDING, INCLUDING, BUT NOT LIMITED TO, A PROCEEDING BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS. ACCORDINGLY, THIS DOCUMENT SHOULD NOT BE RELEASED TO ANY PERSON OR ENTITY WITHOUT THE CONSENT OF THE BOARD. PURSUANT TO §164.003 AND §164.007 OF THE MEDICAL PRACTICE ACT AND CHAPTER 179 OF THIS TITLE (RELATING TO CONFIDENTIALITY), RELEASE OF THIS DOCUMENT, OR ANY PORTION THEREOF, TO A LICENSEE OR THEIR REPRESENTATIVE PURSUANT TO §164.003 OF THE MEDICAL PRACTICE ACT AND CHAPTER 187 OF THIS TITLE (RELATING TO PROCEDURAL RULES), SHALL NOT CONSTITUTE WAIVER OF PRIVILEGE OR CONFIDENTIALITY.]

[(d) An Expert Reviewers' Report is:]

[(1) "investigative information" and an "investigative report" and is privileged and confidential, in accordance with §164.007(c), Texas Occupations Code; and]

[(2) an investigative report by a consulting-only expert as defined by Texas Rules of Civil Procedure §192.3(e) and §192.7(d).]

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 October 21, 2019.

TRD-201903833

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: December 1, 2019

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


22 TAC §§182.2, 182.4, 182.6, 182.7

The repeals are proposed 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.

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

§182.2.Board's Role.

§182.4.Use of Consultants.

§182.6.Use of expert witnesses.

§182.7.Interim Appointment.

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 October 21, 2019.

TRD-201903834

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: December 1, 2019

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


PART 10. TEXAS FUNERAL SERVICE COMMISSION

CHAPTER 203. LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES

SUBCHAPTER B. DUTIES OF A FUNERAL ESTABLISHMENT/LICENSEE

22 TAC §203.32

The Texas Funeral Service Commission (Commission) proposes to amend 22 Texas Administrative Code (TAC) §203.32, concerning Requirements Relating to Embalming.

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 April 19, 2019, issue of the Texas Register (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 in HB 1540, as directed by the Texas Sunset Advisory Commission, or as requested by stakeholders to clarify the rules.

Rule §203.32, Requirements Relating to Embalming - The changes would eliminate the requirement 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 if satisfied that the deceased will be presentable to the public.

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.

§203.32.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:

(A) provisional licensed embalmers under the personal supervision of a licensed embalmer;

(B) 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[,]

(C) 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.

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 October 14, 2019.

TRD-201903751

Kyle E. Smith

Interim Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: December 1, 2019

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


PART 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

CHAPTER 512. CERTIFICATION BY RECIPROCITY

22 TAC §512.1

The Texas State Board of Public Accountancy (Board) proposes an amendment to §512.1, concerning Certification as a Certified Public Accountant by Reciprocity.

Background, Justification and Summary

The amendment to §512.1 deletes the reference to good moral character, to track the changes made to the Act effective September 1, 2019, and advises applicants that the Board will be reviewing applicants' criminal history records in order to ensure that licensees possess the integrity necessary to provide accounting services to the public.

Fiscal Note

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment is in effect, there will be no additional estimated cost to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit

The adoption of the proposed amendment will be a rule that follows the Act and protects the public.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

William Treacy, Executive Director, has determined that the proposed amendment will not have an adverse economic effect on small businesses, rural communities or micro-businesses because the amendment does not impose any duties or obligations upon small businesses, rural communities or micro-businesses; therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis are not required.

Government Growth Impact Statement

William Treacy, Executive Director, has determined that for the first five-year period the amendment is in effect, the proposed rule: does not create or eliminate a government program; does not create or eliminate employee positions; does not increase or decrease future legislative appropriations to the Board; does not increase or decrease fees paid to the Board; does not create a new regulation; does not expand, limit or repeal an existing regulation; does not increase or decrease the number of individuals subject to the proposed rule's applicability; and does not positively or adversely affect the state's economy.

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8) Texas Government Code).

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on December 2, 2019.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small businesses. If the proposed rule is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the rule, describe and estimate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Board may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute under which the proposed rule is to be adopted; and finally, describe how the health, safety, environmental, and economic welfare of the state will be impacted by the various proposed methods. See Texas Government Code, §2006.002(c).

Statutory Authority

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§512.1.Certification as a Certified Public Accountant by Reciprocity.

(a) The certificate of a "certified public accountant" shall be granted by reciprocity to an applicant who is qualified under §901.259 of the Act (relating to Certification Based on Reciprocity) or §901.260 of the Act (relating to Certificate Based on Foreign Credentials) and lacks a history of dishonest or felonious acts and any criminal activity that might be relevant to the applicant's qualifications [is of good moral character] as provided for [described] in §901.253 of the Act (relating to Background [Character] Investigation). The applicant must provide in the application for reciprocity the names of all the jurisdictions in which the applicant is or has been certified and/or licensed and all disciplinary actions taken or pending in those jurisdictions.

(b) Each applicant shall submit to the Department of Public Safety a complete and legible set of fingerprints from a vendor approved by the Department of Public Safety in conjunction with the application for the purpose of obtaining criminal history record information.

(c) An applicant from a domestic jurisdiction demonstrates that he meets the requirements for certification by reciprocity by:

(1) satisfying one of the following conditions:

(A) the applicant holds a certificate or license to practice public accountancy from a domestic jurisdiction that has been determined by the board pursuant to §512.2 of this chapter (relating to NASBA Verified Substantially Equivalent Jurisdictions) as having substantially equivalent requirements for certification; or

(B) the applicant holds a certificate or license to practice public accountancy from a domestic jurisdiction that has not been determined by NASBA and the board to have substantially equivalent certification requirements but has had his education, examination and experience verified as substantially equivalent to those required by the UAA by NASBA; or

(C) the applicant meets all requirements for issuance of a certificate set forth in the Act; or

(D) the applicant met the requirements in effect for issuance of a certificate in this state on the date the applicant was issued a certificate or license by another domestic jurisdiction; or

(E) after passing the UCPAE, the applicant has completed at least four years of experience practicing public accountancy within the ten year period immediately preceding the date of application in this state; and

(2) meeting CPE requirements applicable to certificate holders contained in Chapter 523 of this title (relating to Continuing Professional Education).

(d) An applicant from a foreign jurisdiction demonstrates that he meets the requirements for certification by reciprocity by:

(1) holding a credential that has not expired or been revoked, suspended, limited or probated, and that entitles the holder to issue reports on financial statements issued by a licensing authority or professional accountancy body of another country that:

(A) regulates the practice of public accountancy and whose requirements to obtain the credential have been determined by the board to be substantially equivalent to the requirements of education, examination and experience contained in the Act; and

(B) grants credentials by reciprocity to applicants certified to practice public accountancy by this state;

(2) receiving that credential based on education and examination requirements that were comparable to or exceeded those required by the Act at the time the credential was granted;

(3) completing an experience requirement in the foreign jurisdiction that issued the credential that is comparable to or exceeds the experience requirement of the Act or has at least four years of professional accounting experience in this state;

(4) passing an international qualifying examination (IQEX) covering national standards that has been approved by the board; and

(5) passing an examination that has been approved by the board covering the rules of professional conduct in effect in this state.

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

Filed with the Office of the Secretary of State on October 17, 2019.

TRD-201903779

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: December 1, 2019

For further information, please call: (512) 305-7842


CHAPTER 513. REGISTRATION

SUBCHAPTER B. REGISTRATION OF CPA FIRMS

22 TAC §513.11

The Texas State Board of Public Accountancy (Board) proposes an amendment to §513.11, concerning Qualifications for Non-CPA Owners of Firm License Holders.

Background, Justification and Summary

The amendment to §513.11 deletes the reference to good moral character to track the changes made to the Act beginning September 1, 2019 and advises applicants that the Board will be reviewing applicants' criminal history records in order to ensure that licensees possess the integrity necessary to provide accounting services to the public.

Fiscal Note

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment is in effect, there will be no additional estimated cost to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit

The adoption of the proposed amendment will be a rule that follows the Act and protects the public.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

William Treacy, Executive Director, has determined that the proposed amendment will not have an adverse economic effect on small businesses, rural communities or micro-businesses because the amendment does not impose any duties or obligations upon small businesses, rural communities or micro-businesses; therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis are not required.

Government Growth Impact Statement

William Treacy, Executive Director, has determined that for the first five-year period the amendment is in effect, the proposed rule: does not create or eliminate a government program; does not create or eliminate employee positions; does not increase or decrease future legislative appropriations to the Board; does not increase or decrease fees paid to the Board; does not create a new regulation; does not expand, limit or repeal an existing regulation; does not increase or decrease the number of individuals subject to the proposed rule's applicability; and does not positively or adversely affect the state's economy.

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8) Texas Government Code).

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on December 2, 2019.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small businesses. If the proposed rule is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the rule, describe and estimate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Board may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute under which the proposed rule is to be adopted; and finally, describe how the health, safety, environmental, and economic welfare of the state will be impacted by the various proposed methods. See Texas Government Code, §2006.002(c).

Statutory Authority

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§513.11.Qualifications for Non-CPA Owners of Firm License Holders.

(a) A firm which includes non-CPA owners may not qualify for a firm license unless every non-CPA individual who is an owner of the firm:

(1) is actively providing personal services in the nature of management of some portion of the firm's business interests or performing services for clients of the firm or an affiliated entity;

(2) lacks a history of dishonest or felonious acts or any criminal activity that might be relevant to the applicant's qualifications ; and

(3) is not a suspended or revoked licensee or certificate holder excluding those licensees that have been administratively suspended or revoked. (Administratively suspended or revoked are those actions against a licensee for Continuing Professional Education reporting deficiencies or failure to renew a license.)

(b) Each of the non-CPA individual owners who are residents of the State of Texas must also:

(1) pass an examination on the rules of professional conduct as determined by board rule;

(2) comply with the rules of professional conduct;

(3) maintain any professional designation held by the individual in good standing with the appropriate organization or regulatory body that is identified or used in an advertisement, letterhead, business card, or other firm-related communication; and

(4) provide to the board fingerprinting required in §515.1(d) of this title (relating to License) unless previously submitted to the board.

(c) A "Non-CPA Owner" includes any individual or qualified corporation who has any financial interest in the firm or any voting rights in the firm.

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 October 17, 2019.

TRD-201903780

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: December 1, 2019

For further information, please call: (512) 305-7842