TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 163. LICENSURE

22 TAC §163.13

The Texas Medical Board (Board) proposes amendments to 22 TAC §163.13, concerning Expedited Licensure.

Section 163.13, relating to Expedited Licensure, is amended to implement a legislative mandate in H.B. 1504 (86th Regular Legislative Session) requiring the Board to develop an expedited licensing process for certain applicants who also hold an out-of-state license in good standing.

Scott Freshour, General Counsel for the Texas Medical Board, has determined that, for each year of the first five years the amendments as proposed are in effect, the public benefit anticipated as a result of enforcing these amendments will be to allow for qualified and experienced physicians who have practiced successfully in other states to obtain expedited licensure in Texas.

Scott Freshour, General Counsel for the Texas Medical Board, has determined that for each year of the first five years the amendments as proposed is in effect the public benefit anticipated as a result of enforcing this proposal will be as stated above.

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 is 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 rules do not create or eliminate a government program.

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

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

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

(5) The proposed rules create new regulations as described above.

(6) The proposed rules do not repeal existing regulations. The proposed rules expand an existing regulation.

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

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

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

The amendments are proposed under the authority of the Texas Occupations Code Annotated, 155.0561, 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.

§163.13.Expedited Licensure.

(a) Applications for licensure shall be expedited by the board's licensure division provided the applicant meets the criteria for applying for licensure under §163.2(d) of this title (relating to Full Texas Medical License) or submits an affidavit stating that:

(1) the applicant intends to practice in a rural community as determined by the Office of Rural Health Initiatives; or

(2) the applicant intends to practice medicine in a medically underserved area or health professional shortage area designated by the United States Department of Health and Human Services that has a shortage of physicians.

(b) Applications for licensure by certain psychiatrists shall be expedited by the board's licensure division.

(1) To be eligible, the applicant must meet the following criteria:

(A) holds an unrestricted license to practice medicine issued by another state;

(B) is board certified in psychiatry by the American Board of Psychiatry and Neurology or the American Osteopathic Board of Neurology and Psychiatry; and

(C) is not ineligible for licensure under §155.003(e) of the Medical Practice Act.

(2) The board's licensure division shall review all applications upon receipt to determine whether an applicant is eligible for expedited licensure.

(3) Subsection (b) of this section is effective September 1, 2017, and expires on January 1, 2022.

(c) Applications for licensure by certain physicians licensed in other states or Canada for a certain period of years shall be expedited by the board's licensure division. The Board has interpreted the intent of Tex. Occ. Code, Section 155.0561, to recognize that a physician can demonstrate competency by engaging in the active practice of medicine over a period of years in the United States or Canada. By allowing these physicians to seek expedited licensure it increases access to medical care for the citizens of Texas.

(d) An applicant meets the criteria set out in Tex. Occ. Code, Section 155.0561, shall be deemed to have met the requirements of Tex. Occ. Code, Section 155.003.

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 24, 2019.

TRD-201903900

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: December 8, 2019

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


CHAPTER 165. MEDICAL RECORDS

22 TAC §165.7

The Texas Medical Board (Board) proposes a new rule to 22 TAC 165, relating to Out-of-Network Provider Notice and Disclosure Requirements, §165.7.

The new rule §165.7 implements a legislative mandate in S.B. 1264 (86th Regular Legislative Session) requiring the Board to develop a notice and disclosure form related to cost estimate for out-of-network providers performing elective medical procedures. The provider must furnish the notice and disclosure form to the patient prior to undergoing such elective procedures.

Scott Freshour, General Counsel for the Texas Medical Board, has determined that, for each year of the first five years the rule as proposed is in effect, the public benefit anticipated as a result of enforcing this proposal will be to have rules that comply with statutory mandates.

Mr. Freshour has determined that, for the first five-year period this rule is in effect, there will be no effect to individuals required to comply with this rule 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, and has determined that for each year of the first five years the proposed rule 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 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 this rule amendment, as proposed, is in effect:

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

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

(3) there are no estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the rule; and

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

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

(1) The proposed rule does not create or eliminate a government program.

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

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

(4) The proposed rule does not require an increase or decrease in fees paid to the agency.

(5) The proposed rule does create a new regulation.

(6) The proposed rule does expand, limit, or repeal an existing regulation as described above.

(7) The proposed rule does increase the number of individuals subject to the rule's applicability.

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

The new rule is proposed under the authority of the Texas Occupations Code Annotated, 153.001, which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure.

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

§165.7.Out-of-Network Provider Notice and Disclosure Requirements.

(a) As used in this section:

(1) "Board" means the Texas Medical Board and its advisory boards and committees.

(2) "Out-of-network provider" means a facility-based, laboratory service, or diagnostic imaging provider that is not a participating provider for a health benefit plan offered by a health maintenance organization operating under Texas Insurance Code, Chapter 843; a preferred provider benefit plan, including an exclusive provider benefit plan, offered by an insurer under Texas Insurance Code, Chapter 1301; or a health benefit plan, other than a health maintenance organization plan (HMO), under Texas Insurance Code, Chapter 1551, 1575, or 1579.

(3) "Provider" means a physician, health care practitioner, or other health care provider who is licensed, permitted, or certified by the board.

(4) "Health care practitioner" means an individual who is licensed to provide health care services.

(5) "Emergency care" has the meaning assigned by Texas Insurance Code, Section 1301.155.

(6) "Diagnostic imaging provider" has the meaning assigned by Texas Insurance Code, Section 1467.001.

(7) "Diagnostic imaging service" has the meaning assigned by Texas Insurance Code, Section 1467.001.

(8) "Enrollee" has the meaning assigned by Texas Insurance Code, Section 1467.001

(9) "Facility" has the meaning assigned by Texas Health and Safety Code, Section 324.001.

(10) "Facility-based provider" means a physician, health care practitioner, or other health care provider who provides medical care or health care services to patients of a health care facility and who is licensed, permitted, or certified by the Board.

(11) "Laboratory service provider" has the meaning assigned by Texas Insurance Code, Section 1467.001.

(12) "Laboratory service" means a non-emergency interpretation of or diagnosis based on:

(A) a specimen; or

(B) information provided by a laboratory based on a specimen.

(b) This section implements Sections 1271.157, 1271.158, 1301.164, 1301.165, 1551.229, 1551.230, 1575.172, 1575.173, 1579.110, and 1579.111 of the Texas Insurance Code.

(c) In accordance with Texas Insurance Code requirements, an out-of-network provider shall provide written notice and disclosure to an enrollee prior to providing nonemergency health care or medical services to the enrollee. The required notice and disclosure must be in writing and provided to the enrollee by the out-of-network provider or agent or assignee of the out-of-network provider, in a form that substantially complies with the board approved notice and disclosure statement and Texas Insurance Code requirements.

(d) The enrollee must be provided the notice and disclosure statement prior to the scheduling of the nonemergency health care or medical service and no less than ten business days prior to the date the nonemergency health care or medical service is performed. The enrollee must be given at least five business days to consider whether to accept the notice and disclosure statement and may not agree prior to three business days after the notice and disclosure statement was provided. The notice and disclosure statement must be signed and dated by the enrollee no less than five business days prior to the date the service is performed. A provider shall not charge any nonrefundable fee, deposit, or cancellation fee for the procedure prior to the receipt of the signed notice and disclosure statement.

(e) A single comprehensive required notice and disclosure statement, signed and dated by the enrollee, may be used in the event that multiple out-of-network providers will provide the nonemergency health care or medical services. If a single notice and disclosure statement is used each out-of-network provider or their agent or assignee must provide the required information concerning their health care or medical service on the notice and disclosure statement.

(f) Each out-of-network provider shall maintain a copy of the required notice and disclosure statement, signed and dated by the enrollee, in the enrollee's medical record. An out-of-network facility-based provider complies with this requirement if a copy of the required notice and disclosure statement, signed and dated by the enrollee, is placed in the enrollee's medical record maintained by the facility.

(g) The notice and disclosure Statement must:

(1) explain that the out-of-network provider does not have a contract with the enrollee's health benefit plan;

(2) disclose projected amounts for which the enrollee may be responsible; and

(3) disclose the circumstances under which the enrollee would be responsible for those amounts.

(h) The notice and disclosure statement must include:

(1) an option for the enrollee to accept financial responsibility as presented in the notice and disclosure statement;

(2) an option for the enrollee to decline the nonemergency health care or medical services from the out-of-network provider at the projected amounts presented in the notice and disclosure statement; and

(3) a notice that the enrollee may request to negotiate the projected amounts presented in the notice and disclosure statement, and that the out-of-network provider is neither required by law nor prevented by law from negotiating the projected price amounts.

(i) An out-of-network provider shall review the notice and disclosure statement with the enrollee on the day the nonemergency health care or medical services are to be rendered. The enrollee shall affirm in writing or verbally and such affirmation shall be documented and made part of the enrollee's medical records.

(j) Figures 1 and 2 are the board approved notice and disclosure statement to be utilized under this rule.

Figure 1: 22 TAC §165.7(j) (.pdf)

Figure 2: 22 TAC §165.7(j) (.pdf)

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 24, 2019.

TRD-201903899

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: December 8, 2019

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


CHAPTER 193. STANDING DELEGATION ORDERS

22 TAC §§193.5, 193.13, 193.17, 193.21

The Texas Medical Board (Board) proposes amendments to 22 TAC §193.5, concerning Physician Liability for Delegated Acts and Enforcement, §193.13, concerning Certified Registered Nurse Anesthetists, and §193.17, concerning Nonsurgical Medical Cosmetic Procedures. The Board also proposes new §193.21, concerning Delegation Related to Radiological Services.

The amendments to §193.5 relating to Physician Liability for Delegated Acts and Enforcement, adds new subsections (c) and (d) in order to clarify that the physician and the delegate relationship applies for providers other than PA and APRN's.

The amendments to §193.13 relating to Delegation to Certified Registered Nurse Anesthetists, adds clarifying language and new subsections (d), (e) and (f) relating to the roles and responsibilities of the delegating physician and CRNAs. The rule clarifies that a CRNA does have not independent practice authority, but significant discretion in performing delegated duties. This clarifying language is a direct result of a recent Attorney General Opinion directly on point.

The amendments to §193.17 relating to Nonsurgical Medical Cosmetic Procedures, adds clarifying language addressing the responsibilities of delegating physician and providers while providing non-surgical cosmetic procedures in medspas. New subsection (f) is proposed to ensure that delegating and supervising physicians of medspas are required to report such delegation relationships to the Board. These rule amendments arose out of increasing concerns over relating to non-surgical cosmetic procedures being provided at medspas without physician involvement and without proper delegation and supervision.

The proposed new rule §193.21, relating Delegation Related to Radiological Services, adds requirements to ensure proper oversight by delegating physicians involving radiological studies and treatment plans.

Scott Freshour, General Counsel for the Texas Medical Board, has determined that, for each year of the first five years the amendments as proposed are in effect, the public benefit anticipated as a result of enforcing these amendments will be to provide enhanced safety and accountability of practitioners through clear guidance as to requirements of delegation and supervision. The proposed new rule provides clearer guidance to practitioners' responsibilities related to their delegated duties, and the role and expectations of the delegating physician. Additionally, the rules provide greater transparency for patients to fully understand who is actually providing treatment and services, and who is supervising these activities.

Mr. Freshour has determined that for the first five-year period this rule is 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 new rule 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 and new rule, as proposed, are in effect:

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

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

(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 rule.

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

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

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

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

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

(4) The proposed rule does not require an increase or decrease in fees paid to the agency.

(5) The proposed amended rules do create a new regulations as described above, the proposed new rule does create a new regulation as described above.

(6) The proposed rules expand, limit, or repeal an existing regulation as described above.

(7) The proposed rule increases the number of individuals subject to the rule's applicability.

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

The amendments and new rule are proposed 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.

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

§193.5.Physician Liability for Delegated Acts and Enforcement.

(a) A physician shall not be liable for the act or acts of a physician assistant or advanced practice registered nurse solely on the basis of having signed an order, a standing medical order, a standing delegation order, a prescriptive authority agreement, or other order or protocol, authorizing a physician assistant or advanced practice registered nurse to administer, provide, prescribe or order a drug or device, unless the physician has reason to believe the physician assistant or advanced practice registered nurse lacked the competency to perform the act or acts.

(b) Notwithstanding subsection (a) of this section, delegating physicians remain responsible to the Board and to their patients for acts performed under the physician's delegated authority.

(c) This subsection applies to individuals other than a physician assistant or advanced practice registered nurse who have a standing medical order, a standing delegation order, a prescriptive authority agreement, or other order or protocol with the delegating physician. A physician who delegates to individuals is responsible for ensuring and documenting:

(1) it is within reasonable, sound medical judgment after consideration of the patient's history, status, and procedures to be undertaken to proceed with delegation;

(2) the delegated acts can be properly and safely performed in its customary manner;

(3) the identity of the physician responsible for the delegation and supervision of the delegated act or acts; and

(4) the identity credentials and title of the individual who will perform the delegated act or acts.

[(c) Any physician authorizing standing delegation orders or standing medical orders which authorize the exercise of independent medical judgment or treatment shall be subject to having his or her license to practice medicine in the State of Texas revoked or suspended under §§164.001, 164.052, and 164.053 of the Act.]

(d) Any physician authorizing delegation, orders, standing delegation orders or standing medical orders which authorize or allow the exercise of independent medical judgment or treatment shall be subject to having his or her license to practice medicine in the State of Texas revoked or suspended under §§164.001, 164.052, and 164.053 of the Act.

§193.13.Delegation to Certified Registered Nurse Anesthetists.

(a) In a licensed hospital or ambulatory surgical center a physician may delegate to a certified registered nurse anesthetist, acting under adequate physician supervision, the ordering of drugs and devices necessary for a certified registered nurse anesthetist to administer an anesthetic or an anesthesia-related service ordered by the physician. The physician's order for anesthesia or anesthesia-related services does not have to be drug-specific, dose-specific, or administration-technique-specific. Pursuant to the order and in accordance with facility policies or medical staff bylaws, the nurse anesthetist may select, obtain, and administer those drugs and apply the appropriate medical devices necessary to accomplish the order and maintain the patient within a sound physiological status.

(b) A physician who delegates to a certified registered nurse anesthetist, acting under adequate physician supervision, the ordering of drugs and devices necessary for the certified registered anesthetist to administer an anesthetic or an anesthesia-related service is not required to register the name and license number of the certified registered nurse anesthetist with the board.

(c) This section shall be liberally construed to permit the full use of safe and effective medication orders to utilize the skills and services of certified registered nurse anesthetists. A certified registered nurse anesthetist does not possess independent authority to administer anesthesia without delegation by a physician.

(d) The delegating physician is responsible:

(1) for determining and insuring that it is reasonable, sound medical judgment to delegate to certified registered nurse anesthetist

(2) that the delegated acts can be properly and safely delegated performed in its customary manner; and

(3) is not in violation of any other statute;

(e) The delegating physician is ultimately responsible for the certified registered nurse anesthetist performing delegated acts.

(f) If the delegating physician and certified registered nurse anesthetist enter or have a prescriptive authority agreement the terms and conditions of that agreement will control the provision of the delegated anesthesia or anesthesia-related services.

§193.17.Nonsurgical Medical Cosmetic Procedures.

(a) Purpose. The purpose of this section is to establish the duties and responsibilities of a physician who performs or who delegates the performance of a nonsurgical medical cosmetic procedure [(hereafter referred to as "Procedure")]. These procedures can result in complications and the performance of these procedures is the practice of medicine. This rule shall not be interpreted to allow individuals to perform delegated procedures without physician supervision. [either a physician or APRN or PA being onsite, or a physician being available for emergency consultation or appointment in the event of an adverse outcome.]

(b) Definitions.

(1) Advanced Practice Registered Nurse (APRN)--is defined in accordance with the Texas Occupation Code, Section 301.152(a). [Midlevel practitioner- A physician assistant or advanced practice registered nurse.]

(2) Administer the direct application of a drug or other substances to the body of a patient by injection, inhalation, ingestion or any other non-surgical means. [Prescription medical device--A device that the federal Food and Drug Administration has designated as a prescription medical device, and can be sold only to persons with prescriptive authority in the state in which they reside.]

(3) Physician Assistant (PA)--an individual licensed to practice as a physician assistant in Texas in accordance with the Texas Occupation Code, Chapter 204.

[(3) Procedure--A nonsurgical medical cosmetic procedure, including but not limited to the injection of medication or substances for cosmetic purposes, the administration of colonic irrigations, and the use of a prescription medical device for cosmetic purposes.]

(4) Prescription medical device--A device that the federal Food and Drug Administration has designated as a prescription medical device, and can be sold only to persons with prescriptive authority in the state in which they reside.

(5) Procedure--A nonsurgical medical cosmetic procedure, including but not limited to the [injection] administering of [medication] a drug or substances for cosmetic purposes, the administration of colonic irrigations, and the use of a prescription medical device for cosmetic purposes.

(6) Qualified Personnel--A qualified and properly trained individual, other than a APRN or PA, who acts under a physician's delegation to perform a procedure which is not in violation of any other statute.

(7) Supervision--The on-site presence of an APRN or PA, acting under the delegation from a physician, during the performance of a procedure, or the immediate availability of the delegating physician for consultation. Supervision does not require direct observation of the performance of the procedure.

(c) Applicability. This section does not apply to:

(1) surgery as defined under Texas Occupations Code, §151.002(a)(14);

(2) the practice of a profession by a licensed health care professional under methods or means within the scope of practice permitted by such license;

(3) the use of nonprescription devices;

(4) intravenous therapy;

(5) procedures performed at a physician's practice by the physician APRN, or PA [or midlevel practitioners] acting under the physician's supervision; or

(6) laser hair removal procedures performed in accordance with Texas Health and Safety Code, Chapter 401, Subchapter M.

(d) Physician Responsibilities.

(1) A physician must be appropriately trained, including hands-on training, in a procedure [Procedure] prior to performing the procedure [Procedure] or delegating the performance of a procedure [Procedure]. The physician must keep a record of the [his or her] training in the office and have it available for review upon request by a patient or a representative of the board.

(2) Prior to authorizing a procedure [Procedure ], a physician, or APRN or PA [or midlevel practitioner ] acting under the delegation of a physician, must:

(A) take a history;

(B) perform an appropriate physical examination;

(C) make an appropriate diagnosis;

(D) recommend appropriate treatment;

(E) develop a detailed and written treatment plan;

(F) obtain the patient's informed consent;

(G) provide instructions for emergency and follow-up care;

(H) prepare and maintain an appropriate medical record;

(I) practice under [have] signed and dated written protocols as described in paragraph (7) of this subsection that are detailed to a level of specificity that the [person ] APRN, PA, or qualified personnel performing the procedure [Procedure] may readily follow; and

(J) practice under [have] signed and dated written standing orders.

(K) The performance of the items listed in subparagraphs (A) - (J) of this paragraph must be documented in the patient's medical record.

(3) After a patient has been evaluated and diagnosed, as described in paragraph (2) of this subsection, qualified personnel [unlicensed] may perform a procedure under supervision. [only if:]

[(A) a physician or APRN or PA is onsite during the procedure; or]

[(B) a delegating physician is available for emergency consultation in the event of an adverse outcome, and if the physician considers it necessary, be able to conduct an emergency appointment with the patient.]

(4) Regardless of who performs the procedure [Procedure], the physician is ultimately responsible for the safety of the patient and all aspects of the procedure [Procedure].

(5) Regardless of who performs the procedure [Procedure] the physician is responsible for ensuring that each procedure [Procedure] is documented in the patient's medical record. A procedure performed by qualified personnel [unlicensed personnel] must be timely co-signed by a supervising physician within a reasonable time as determined by the physician.

(6) The physician must ensure that the facility at which procedures [Procedures] are performed, there is a quality assurance program pertaining to procedures [Procedures] that includes the following:

(A) a mechanism to identify complications and adverse effects of treatment and to determine their cause;

(B) a mechanism to review the adherence to written protocols by all health care personnel;

(C) a mechanism to monitor the quality of treatments;

(D) a mechanism by which the findings of the quality assurance program are reviewed and incorporated into future protocols; and

(E) ongoing training to maintain and improve the quality of treatment and performance of procedures [Procedures] by qualified[health care] personnel.

(7) A physician may delegate procedures [Procedures ] only at a facility at which the physician has either:

(A) approved in writing the facility's written protocols pertaining to the procedures [Procedures]; or

(B) developed [his own] protocols for the procedures[Procedures] as described in paragraph (2)(I) of this subsection.

(8) The physician must ensure that an APRN, PA or qualified personnel [a person] performing a procedure [Procedure] has appropriate training in, at a minimum:

(A) techniques for each procedure [Procedure];

(B) cosmetic or cutaneous medicine;

(C) indications and contraindications for each procedure [Procedure];

(D) pre-procedural and post-procedural care;

(E) recognition and acute management of potential complications that may result from the procedure [Procedure]; and

(F) infectious disease control involved with each treatment.

(9) The physician [has] must have a written office protocol for the APRN, PA or qualified personnel [person] performing the procedure to follow in performing each procedure delegated. A written office protocol must include, at a minimum, the following:

(A) the identity of the physician responsible for the delegation and supervision of the procedure;

(B) selection criteria to screen patients by the physician, APRN, or PA for the appropriateness of treatment;

(C) a description of appropriate care and follow-up for common complications, serious injury, or emergencies;

(D) a statement of the activities, decision criteria, and plan the APRN, or PA [physician] or qualified personnel shall follow when performing [or delegating the performance of] a procedure, including the method for documenting decisions made and a plan for communication or feedback to the delegating [authorizing] physician concerning specific decisions made; and

(E) a description of what information must be documented by the APRN, PA or qualified personnel [person] performing the procedure.

(10) The physician must ensure [ensures] that each APRN, PA or qualified personnel [person] performs each procedure [Procedure] in accordance with the written office protocol.

(11) Each patient must sign [signs] a consent form prior to treatment that lists potential side effects and complications, and the identity and titles of the individual who will perform the procedure.

(12) Each APRN, PA or qualified personnel [person] performing a procedure [Procedure] must be readily identified by a name tag or similar means that clearly delineates the identity and credentials of the person.

(13) Any time a procedure [Procedure] is performed, at least one APRN, PA or qualified personnel [person] trained in basic life support must be onsite.

(e) Notice Provisions.

(1) Each facility providing procedures [Nonsurgical Medical Cosmetic Procedures] must post a Notice Concerning Complaints in compliance with Chapter 178.

(2) Each facility providing procedures [Nonsurgical Medical Cosmetic Procedures] must post in each public area and treatment room or area a Notice in the format found in §178.3 of this title (relating to Complaint Resolution) [Rule 178.3] including the name(s) and Texas Medical license numbers of the delegating physician(s) for that facility.

(f) Notification of Intent to Delegate and Supervise. A physician licensed under the Act must, before accepting a position for purposes of delegating and supervising any procedure or upon changing or adding such a position, must submit notification of intent to delegate and supervise such procedures. Notification under this section must include:

(1) the business owner's name, business name and address, and telephone number of the facility or business where the procedures will be conducted;

(2) a list of the PA(s), APRN(s), or qualified personnel subject to delegation and supervision; and

(3) the name, business address, Texas medical license number, and telephone number of the supervising physician.

(g) A physician must submit notification of termination, any changes in, or additions to the facility or business where the procedures will be conducted, and the persons subject to delegation and supervision not later than the 30th day after the date the change or addition is made.

(h) For the purposes of this section, a single form prescribed by the board shall be used to provide notification required under this subsection.

(i) If a supervising physician will be unavailable to supervise as required by this section, arrangements shall be made for an alternate physician to provide that supervision. The alternate physician providing that supervision shall affirm in writing and document through a log where the procedures are being performed that he or she is familiar with the prescriptive authority agreements, protocols, or standing delegation orders in use, as applicable, and is accountable for adequately supervising the procedures. The log shall be kept at the facility or business. The log shall contain dates of the alternate physician supervision and be signed by the alternate physician acknowledging this responsibility.

(j) Disciplinary Action. All physicians delegating or supervising such procedures to an APRN, PA, or qualified personnel at a practice or facility shall be responsible for ensuring compliance with all applicable laws and rules pertaining to supervision, delegation and procedures. A violation of any applicable law or provision of this rule is grounds for disciplinary action.

§193.21.Delegation Related to Radiological Services.

(a) This section does not apply to PAs and APRNs who have been specifically delegated authority to perform and interpret radiologic studies.

(b) A physician may delegate the performance of radiological procedures and diagnostic reading to specially trained individuals instructed and directed by a licensed physician who accepts responsibility for the acts of such allied health personnel.

(c) The specially trained individuals may:

(1) do preliminary reading and interpretation of the radiological studies; and

(2) render a preliminary diagnosis and course of treatment based on the radiological studies.

(d) The delegating physician's approval or changes to subsection (c)(1) and (2) of this section must documented in the medical record, within a reasonable time, following the action taken by the specially trained individual.

(e) The delegating physician is ultimately responsible for any and all actions taken by a specially trained individual under subsection (c)(1) and (2) of this section.

(f) This section does not allow a physician to delegate any medical act, including but not limited to performance of a radiologic procedure, preliminary reading and interpretation of a radiologic study, and rendering a preliminary diagnosis and course of treatment based on a radiologic study, to an individual not properly trained, qualified, and licensed to perform the medical act.

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 25, 2019.

TRD-201903987

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: December 8, 2019

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


PART 10. TEXAS FUNERAL SERVICE COMMISSION

CHAPTER 203. LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES

SUBCHAPTER A. LICENSING

22 TAC §203.8

The Texas Funeral Service Commission (Commission) proposes to amend Title 22 Texas Administrative Code Part 10, Chapter 203, Subchapter A, Licensing, specifically §203.8, Continuing Education.

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

§203.8, Continuing Education.

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

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, the public benefit is that the agency's rules are in compliance with Texas Occupations Code Chapter 651. There will not be any economic cost to any individuals required to comply with the proposed amendments and there is no anticipated negative impact on local employment because the rules only further define and clarify statute.

ADVERSE IMPACT ON SMALL OR MICRO-BUSINESSES OR RURAL COMMUNITIES. Ms. McCoy has determined that there will be no adverse economic effect on small or micro-businesses or rural communities because there are no costs on individuals due to the amendments. 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 Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, and Texas Occupations Code §651.165 which authorizes the Commission to renew licenses; Texas Occupations Code §§651.255-651.256 which outlines exams required to be licensed as a funeral director or embalmer; Texas Occupations Code §651.259 which authorizes the Commission to reciprocate licenses from other states; Texas Occupations Code §651.265 which authorizes the Commission to renew licenses in active/inactive status; §651.266 which authorizes the Commission to adopt rules related to continuing education; Texas Occupations Code §651.3045 which authorizes the Commission to offer education waivers to certain applicants; and Texas Occupations Code Chapter 55 which outlines requirements for occupational licensing of military members, veterans and spouses.

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

§203.8.Continuing Education.

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

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

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

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

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

(c) Approval of continuing education providers.

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

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

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

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

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

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

(d) Responsibilities of approved providers.

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

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

(B) the name of the participant;

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

(D) the number of credit hours given;

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

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

(G) the signature of the attendee, and

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

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

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

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

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

(e) Credit hours required.

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

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

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

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

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

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

(3) Vital Statistics Requirements and Regulations--two credit hours--this course must at least cover Health and Safety Code Chapters 193, 711, and Texas Administrative Code, Title 25, Chapter 181.

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

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

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

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

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

(i) Exemptions.

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

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

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

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

(j) The Commission will not renew the license of an individual who fails to obtain the required 16 hours of continuing education.

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

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 23, 2019.

TRD-201903888

Kyle E. Smith

Intrerim Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: December 8, 2019

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


22 TAC §203.16

The Texas Funeral Service Commission (Commission) proposes amendments to Title 22 Texas Administrative Code Part 10, Chapter 203, Subchapter A - Licensing, §203.16 - Consequences of Criminal Conviction.

BACKGROUND AND JUSTIFICATION. In 2019, the 86th Texas Legislature enacted HB 1342 and SB 1217 which enacted changes to Chapters 51 and 53, Texas Occupations Code. The legislation updated the statute as it relates to how licensing agencies issue or deny licenses to people with a past criminal conviction or deferred adjudication. This proposal updates the Commission's rule to ensure compliance with the legislative changes.

SECTION BY SECTION SUMMARY

Subsection (a) is amended to comply with HB 1342 by removing the authorization for the Commission to consider an offense not directly related to the occupations of funeral directing and/or embalming that was committed less than five years before the person applies for the license.

New subsection (b) is added to comply with SB 1217 by prohibiting the Commission from considering arrests that did not result in a conviction or deferred adjudication.

Existing subsection (b) is re-lettered as subsection (c).

Subsection (c) is re-lettered as subsection (d) and is amended to comply with HB 1342, which requires written notice of the basis for the intended denial, suspension, or revocation.

Subsection (d) is re-lettered as subsection (e).

Subsection (e) is re-lettered as subsection (f). This subsection is amended to clarify that the Commission must consider each of the enumerated factors outlined in Chapter 53 of the Texas Occupations Code in its assessment of an application and determine if those factors directly relate to the duties and responsibilities of the licensed occupation. An additional factor is added in compliance with HB 1342 which requires the Commission to consider any correlation between the elements of a crime and the duties and responsibilities of the licensed occupation. The amendment also corrects a minor grammatical error.

Subsection (f) is re-lettered as subsection (g). This subsection is amended to clarify that the Commission must determine if a crime directly relates to the licensed profession before taking action on a license or application for a license. It complies with HB 1342 by striking the language requiring the Commission to (1) assess the fitness of a person; and (2) consider letters of recommendation from prosecutors and law enforcement and correctional officers.

Subsection (g) is repealed which allowed the Commission to ask an applicant to furnish proof of the applicant's employment history, support of dependents, good conduct, and payment of required court costs and required fees, fines, and restitution.

Subsection (h) is amended to add that the enumerated crimes directly relate to the licensed occupation, in compliance with the changes enacted by HB 1342.

Subsection (k) is added to require the Commission, prior to taking action against a licensee or applicant, provide written notice that includes a statement that (1) a final decision on the license will be based on the factors outlined in subsections (f) or (g) and (2) the person has the responsibility to provide evidence regarding those factors in compliance with changes enacted by HB 1342. The notice must allow the person no less than 30 days to provide the evidence.

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.

Because there is no effect on local economies for the first five years the proposed amendments are in effect, no local employment impact statement is required by Texas Government Code §2001.022.

PUBLIC BENEFIT/COST NOTE. Ms. McCoy has determined that, for each year of the first five years the proposed amendments will be in effect, the public benefit is that the agency's rules will comply with HB 1342 and SB 1217, which relate to how the Commission must review the criminal backgrounds of applicants and licensees. There will not be any new 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 new 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 do limit existing regulations related to how the agency reviews criminal history to the benefit of individuals; 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 that no private real property interests are affected by the proposal and the proposal does not restrict, limit, or impose a burden on an owner's right to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposal does not constitute a taking or require a takings impact assessment under Government Code §2007.0043.

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

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

STATUTORY AUTHORITY: This proposal is made pursuant to (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 Chapter 53 which outlines how a licensing agency may review criminal backgrounds of applicants and licensees in accordance with changes made when the 86th Texas Legislature enacted HB 1342 and SB 1217; and (3) the authority of the Commission to issue licenses pursuant to Texas Occupations Code §§651.251-253.

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

§203.16.Consequences of Criminal Conviction.

(a) The Commission may suspend or revoke a license or deny a person from receiving a license on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of an occupation required to be licensed by Occupations Code, Chapter 651 (Chapter 651). [The Commission may consider an offense not listed as directly related to the occupations of funeral directing and/or embalming that was committed less than five years before the person applies for the license.]

(b) The Commission may not consider an arrest that did not result in the person's conviction or placement on deferred adjudication community supervision.

(c) [(b)] The Commissioners may place an applicant or licensee who has been convicted of an offense on probation by authorizing the Executive Director to enter into an Agreed Order with the licensee. The Agreed Order shall specify the terms of the probation and the consequences of violating the Order.

(d) [(c)] If the Commissioners suspend or revoke a license or deny a person from getting a license, the Commission must notify the person of the decision in writing. That notice must explain any factor(s) considered under Subsection (f) or Subsection (g) of this section that served as the basis for the action and notify the licensee or applicant he or she has the right to appeal that decision to SOAH.

(e) [(d)] The Commission shall immediately revoke the license of a person who is imprisoned following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision. A person in prison is ineligible for licensure. Revocation or denial of licensure under this subsection is not subject to appeal at SOAH.

(f) [(e)] The Commission shall consider each of the following factors in determining what crimes [whether a criminal conviction] directly relate [relates] to the duties and responsibilities of an occupation required to be licensed under [by] Chapter 651, and therefore are included in Subsection (h) of this section:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to engage in the occupations of funeral directing and/or embalming;

(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as [that in which] the person previously had been involved; [and]

(4) the relationship of the crime to the ability or[,] capacity[, or fitness] required to perform the duties and discharge the responsibilities of the licensed occupation; and

(5) any correlation between the elements of the crime and the duties and responsibilities of the licensed occupation.

(g) [(f)] If the person has been convicted of a crime enumerated under Subsection (h) of this section or a crime that otherwise directly relates to the duties and responsibilities of the occupations required to be licensed under Chapter 651, [a person has been convicted of a crime,] the Commission shall consider the following in determining whether to take action authorized by Texas Occupations Code Section 53.021 [against a person's fitness to perform the duties and discharge the responsibilities of a Chapter 651 occupation]:

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person when the crime was committed;

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

(4) the conduct and work activity of the person before and after the criminal activity;

(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; [and]

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

(7) other evidence of the person's fitness including letters of recommendation. [from:

[(A) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;]

[(B) the sheriff or chief of police in the community where the person resides; and]

[(C) any other person in contact with the convicted person.]

[(g) The applicant may be asked to furnish proof that the applicant has:

[(1) maintained a record of steady employment;

[(2) supported the applicant's dependents;

[(3) maintained a record of good conduct; and

[(4) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted.]

(h) The following crimes are directly related to the occupations of funeral directing or embalming, or a crime that otherwise directly relates to the duties and responsibilities of the occupation required to be licensed under Chapter 651, the Commission shall consider the following determining whether to take action authorized by Texas Occupations Code Section 534. 021:

(1) Class B misdemeanors classified by Occupations Code §651.602:

(A) acting or holding oneself out as a funeral director, embalmer, or provisional license holder without being licensed under Chapter 651 and the Rules of the Commission;

(B) making a first call in a manner that violates Occupations Code §651.401;

(C) engaging in a funeral practice that violates Chapter 651 or the Rules of the Commission; or

(D) violating Finance Code, Chapter 154, or a rule adopted under that chapter, regardless of whether the Texas Department of Banking or another governmental agency takes action relating to the violation;

(2) the commission of acts within the definition of Abuse of Corpse under Penal Code, §42.08, because those acts indicate a lack of respect for the dead;

(3) an offense listed in Article 42A.054, Code of Criminal Procedure as provided by Occupations Code §53.021(3);

(4) a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure as provided by Occupations Code §53.021(4);

(5) the following crimes because these acts indicate a lack of respect for human life and dignity:

(A) Murder;

(B) Assault;

(C) Sexual Assault;

(D) Kidnapping;

(E) Injury to a Child;

(F) Injury to an Elderly Person;

(G) Child Abuse;

(H) Harassment; or

(I) Arson;

(6) the following crimes because these acts indicate a lack of principles needed to practice funeral directing and/or embalming:

(A) Robbery;

(B) Theft;

(C) Burglary;

(D) Forgery;

(E) Perjury;

(F) Bribery;

(G) Tampering with a governmental record; or

(H) Insurance claim fraud; and

(7) the following crimes because these acts indicate a lack of fitness to practice funeral directing and/or embalming:

(A) delivery, possession, manufacture or use of or the illegal dispensing of a controlled substance, dangerous drug, or narcotic; or

(B) multiple (more than two) convictions for driving while intoxicated or driving under the influence.

(i) Multiple violations of any criminal statute shall be reviewed by the Commission because multiple violations may reflect a pattern of behavior that renders the applicant unfit to hold a funeral director's and/or embalmer's license.

(j) The Commission may not consider a person to be convicted of an offense if the judge deferred further proceedings without entering an adjudication of guilt, placed the person on community supervision, and dismissed the proceedings at the end of the community supervision. However, if the Commission determines that the licensure of the person as a funeral director and/or embalmer would create a situation in which the person has the opportunity to repeat the prohibited conduct, the Commission shall consider a person to have been convicted regardless of whether the proceedings were dismissed after a period of deferred adjudication if:

(1) the person was charged with any offense described by Article 62.001(5) Code of Criminal Procedure;

(2) the person has not completed the term of community supervision or the person completed the period of supervision less than five years before the date of application; or

(3) a conviction of the offense would make the person ineligible for the license by operation of law.

(k) Prior to taking action against a person as authorized by Texas Occupations Code §53.021, the Commission shall provide written notice to the person that includes a statement that the final decision of the Commission will be based on factors listed under Subsection (f) or Subsection (g) of this section, and the person has the responsibility to provide evidence regarding those factors. The notice shall allow the person no less than 30 days from receiving the notice to submit any relevant evidence or information.

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 23, 2019.

TRD-201903887

Kyle E. Smith

Interim Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: December 8, 2019

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