TITLE 16. ECONOMIC REGULATION

PART 2. PUBLIC UTILITY COMMISSION OF TEXAS

CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS

SUBCHAPTER C. INFRASTRUCTURE AND RELIABILITY

16 TAC §25.55

The Public Utility Commission of Texas (commission) proposes new 16 Texas Administrative Code (TAC) §25.55, relating to weather emergency preparedness, to implement weather emergency preparedness measures for generation entities and transmission service providers in the Electric Reliability Council of Texas (ERCOT) power region, as required by Senate Bill 3 (SB 3), 87th Legislature Session (Regular Session).

Proposed §25.55 represents the first of two phases in the commission's development of robust weather emergency preparedness reliability standards. It is the intent of the commission that the primary objective of implementing phase one weather emergency preparedness reliability standards is to ensure that the electric industry is prepared to provide continuous reliable electric service throughout this upcoming winter season and to comply with the statutory deadline for the adoption of weather emergency preparedness reliability standards set forth in SB 3. Specifically, the proposal requires generators to implement the winter weather readiness actions identified in the 2012 Quanta Technology Report on Extreme Weather Preparedness Best Practices and to fix any known, acute issues that arose during the 2020 - 2021 winter weather season. Similarly, the commission requires transmission service providers to implement key recommendations contained in the 2011 Report on Outages and Curtailments During the Southwest Cold Weather Event on February 1-5, 2011, jointly prepared by the Federal Energy Regulatory Commission and the North American Electric Reliability Corporation. Further, the proposal requires a notarized attestation from the highest-ranking representative, official, or official with binding authority over each of the above entities attesting to the completion of all required activities.

The commission will develop phase two of the weather emergency preparedness reliability standards in a future project. The phase two weather emergency preparedness reliability standards will consist of a more comprehensive, year-round set of weather emergency preparedness reliability standards that will be informed by a robust weather study that is currently being conducted by ERCOT in consultation with the Office of the Texas State Climatologist.

Growth Impact Statement

The agency provides the following governmental growth impact statement for the proposed rule, as required by Texas Government Code §2001.0221. The agency has determined that for each year of the first five years that the proposed rule is in effect, the following statements will apply:

(1) the proposed rule will not create a government program and will not eliminate a government program;

(2) implementation of the proposed rule will not require the creation of new employee positions and will not require the elimination of existing employee positions;

(3) implementation of the proposed rule will not require an increase and will not require a decrease in future legislative appropriations to the agency;

(4) the proposed rule will not require an increase and will not require a decrease in fees paid to the agency;

(5) the proposed rule will create a new regulation;

(6) the proposed rule will not expand, limit, or repeal an existing regulation;

(7) the proposed rule will not change the number of individuals subject to the rule's applicability; and

(8) the proposed rule will positively affect this state's economy by reducing the risk of widespread involuntary load shed events that result in economic harm to residents and businesses.

Fiscal Impact on Small and Micro-Businesses and Rural Communities

There is no adverse economic effect anticipated for small businesses, micro-businesses, or rural communities as a result of implementing the proposed rule. Accordingly, no economic impact statement or regulatory flexibility analysis is required under Texas Government Code §2006.002(c).

Takings Impact Analysis

The commission has determined that the proposed rule will not be a taking of private property as defined in chapter 2007 of the Texas Government Code.

Fiscal Impact on State and Local Government

Kristin Abbott, Project Manager, has determined that, for the first five-year period the proposed rule is in effect, there will be no fiscal implications for the state or for units of local government under Texas Government Code §2001.024(a)(4) as a result of enforcing or administering the sections.

Public Benefits

Ms. Abbott has also determined that, for each year of the first five years the proposed rule and amendments are in effect, the anticipated public benefit expected as a result of the adoption of the proposed amendments will be alignment of commission rules with the requirements of PURA §35.0021 and §38.075. Ms. Abbott has determined that the economic costs to persons required to comply with the rule under Texas Government Code §2001.024(a)(5) will vary on an individual basis, depending on the current weather preparation readiness of the facilities and generation resources to which the rule is applicable.

Local Employment Impact Statement

For each year of the first five years the proposed rule is in effect, there should be no effect on a local economy; therefore, no local employment impact statement is required under Texas Government Code §2001.022.

Costs to Regulated Persons

Texas Government Code §2001.0045(b) does not apply to this rulemaking because the commission is expressly excluded under subsection §2001.0045(c)(7).

Public Hearing

The commission staff will conduct a public hearing on this rulemaking on September 20, 2021, at 9:30 a.m. in the Commissioners' Hearing Room, 7th floor, William B. Travis Building, if requested in accordance with Texas Government Code §2001.029. The request for a public hearing must be received by September 16, 2021. If no request for public hearing is received and the commission staff cancels the hearing, it will file in this project a notification of the cancellation of the hearing prior to the scheduled date for the hearing.

Public Comments

Interested persons may file comments electronically through the interchange on the commission's website. Comments must be filed by September 16, 2021. No reply comments are requested. Comments should be organized in a manner consistent with the organization of the proposed rule. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the proposed rule. The commission will consider the costs and benefits in deciding whether to modify the proposed rule on adoption. Commission staff strongly encourages commenters to include a bulleted executive summary to assist commission staff in reviewing the filed comments in a timely fashion. All comments should refer to Project Number 51840.

Statutory Authority

The new rule is proposed under the following provision of PURA: §14.001, which provides the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by PURA that is necessary and convenient to the exercise of that power and jurisdiction; §14.002, which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction; §35.0021, which requires the commission to adopt rules that require each provider of electric generation service in the ERCOT power region to implement measures to prepare the provider's generation assets to provide adequate electric generation service during a weather emergency; and §38.075, which requires the commission to adopt rules to require each electric cooperative, municipally owned utility, and transmission and distribution utility providing transmission service in the ERCOT power region to implement measures to prepare its facilities to maintain service quality and reliability during a weather emergency.

Cross reference to statutes: PURA §§14.001, 14.002, 35.0021, and 38.075.

§25.55.Weather Emergency Preparedness.

(a) Application. This section applies to the Electric Reliability Council of Texas, Inc. (ERCOT) and to generation entities and transmission service providers in the ERCOT power region.

(b) Definitions. In this section, the following definitions apply unless the context indicates otherwise.

(1) Cold weather critical component--Any component that is susceptible to freezing, the occurrence of which is likely to lead to unit trip, derate, or failure to start.

(2) Energy storage resource--An energy storage system registered with ERCOT for the purpose of providing energy or ancillary services to the ERCOT grid and associated facilities behind the system's point of interconnection necessary for the operation of the system.

(3) Generation entity--An ERCOT-registered resource entity acting on behalf of an ERCOT-registered generation resource or energy storage resource.

(4) Generation resource--A generator capable of providing energy or ancillary services to the ERCOT grid and that is registered with ERCOT as a generation resource, as well as associated facilities behind the generator's point of interconnection necessary for the operation of the generator.

(5) Inspection--The activities that ERCOT engages in to determine whether a generation entity is in compliance with subsection (c) of this section or whether a transmission service provider is in compliance with subsection (f) of this section. An inspection may include site visits; assessments of procedures; interviews; and review of information provided by a generation entity or transmission service provider in response to a request by ERCOT, including review of evaluations conducted by the generation entity or transmission service provider or its contractor. ERCOT will determine, in consultation with the commission, the number, extent, and content of inspections and may conduct inspections using both employees and contractors.

(6) Resource--A generation resource or energy storage resource.

(7) Weather emergency preparation measures--Measures that a generation entity or transmission service provider takes to support the function of a facility in extreme weather conditions, including weatherization, fuel security, staffing plans, operational readiness, and structural preparations.

(c) Phase one weather emergency preparedness reliability standards for a generation entity.

(1) By December 1, 2021, a generation entity must complete the following winter weather emergency preparations for each resource under its control:

(A) All preparations necessary to ensure the sustained operation of all cold weather critical components during winter weather conditions, such as chemicals, auxiliary fuels, and other materials, and personnel required to operate the resource;

(B) Installation of adequate wind breaks for resources susceptible to outages or derates caused by wind; enclosure of sensors for cold weather critical components; inspection of thermal insulation for damage or degradation and repair of any damaged or degraded insulation; confirmation of the operability of instrument air moisture prevention systems; maintenance of freeze protection components for all equipment, including fuel delivery systems, the failure of which could cause an outage or derate, and establishment of a schedule for testing of such freeze protection components on an ongoing monthly basis; and the installation of monitoring systems for cold weather critical components, including circuitry providing freeze protection or preventing instrument air moisture;

(C) All actions necessary to prevent a reoccurrence of any cold weather critical component failure that occurred in the period between November 30, 2020, and March 1, 2021;

(D) Provision of training on winter weather preparations to operational personnel; and

(E) Determination of minimum design temperature, minimum operating temperature, and other operating limitations based on temperature, precipitation, humidity, wind speed, and wind direction.

(2) By December 1, 2021, a generation entity must submit to the commission and ERCOT, on a form prescribed by ERCOT and developed in consultation with commission staff, a winter weather readiness report that:

(A) Describes all activities taken by the generation entity to complete the requirements of paragraph (1) of this subsection; and

(B) Includes, a notarized attestation sworn to by the generation entity's highest-ranking representative, official, or officer with binding authority over the generation entity, attesting to the completion of all activities described in paragraph (1) of this subsection and the accuracy and veracity of the information described in subparagraph (A) of this paragraph.

(3) Based on the requirements of paragraph (1) of this subsection, ERCOT must develop a comprehensive checklist form that includes checking systems and subsystems containing cold weather critical components and file it with the commission no later than December 10, 2021. In addition, ERCOT must use a generation entity's winter weather readiness report submitted under paragraph (2) of this subsection to adapt the checklist to the inspections of the generation entity's resources.

(4) No later than December 10, 2021, ERCOT must file with the commission a summary report of the winter weather readiness reports filed under paragraph (2) of this subsection, including a summary of compliance with the requirements of paragraph (1) and (2) of this subsection and a spreadsheet that delineates compliance with the requirements of paragraph (1) of this subsection for all resources subject to those requirements.

(5) A generation entity that timely submits to ERCOT the winter weather readiness report required by paragraph (2) of this subsection is exempt, for the 2021 calendar year, from the requirement in Section 3.21(3) of the ERCOT Protocols that requires a generation entity to submit the Declaration of Completion of Generation Resource Winter Weatherization Preparations no earlier than November 1 and no later than December 1 of each year.

(6) Good cause exception. A generation entity may submit a request for a good cause exception with the commission to specific requirements listed in paragraph (1) of this subsection.

(A) A generation entity's request must include:

(i) A detailed explanation and supporting documentation of the generation entity's inability to comply with a specific requirement of paragraph (1) of this subsection;

(ii) A detailed description and supporting documentation of the generation entity's efforts that have been made to comply with paragraph (1) of this subsection;

(iii) A plan, including a schedule and supporting documentation, to comply with the specific requirement of paragraph (1) of this subsection for which the good cause exception is being requested from the commission, including a proposed deadline or deadlines for filing updates with the commission on the status of the generation entity's compliance with the specific requirement of paragraph (1) of this subsection and expected compliance date;

(iv) Evidence that notice of the request has been provided to ERCOT; and

(v) A notarized attestation sworn to by the generation entity's highest-ranking representative, official, or officer with binding authority over the generation entity attesting to the accuracy and veracity of the information in the request.

(B) ERCOT is a required party in the proceeding in which a generation entity requests a good cause exception from the commission. ERCOT must make a recommendation to the commission on the request by the deadline set forth by the presiding officer in the proceeding.

(d) Inspections for a generation entity.

(1) ERCOT inspections. ERCOT must conduct inspections of resources for the 2021 - 2022 winter season and must prioritize its inspection schedule based on risk level. ERCOT may prioritize inspections based on factors such as whether a generation resource is critical for electric grid reliability; has experienced a forced outage, forced derate, or failure to start related to extreme weather conditions; or has other vulnerabilities related to extreme weather conditions.

(2) ERCOT inspection report. ERCOT must provide a report on its inspection of a resource to the generation entity. The inspection report must address whether the resource has complied with the requirements in subsection (c) that ERCOT reviewed for the resource and, if the resource has not complied, ERCOT must provide the generation entity a reasonable period to cure the identified deficiencies. The cure period determined by ERCOT must consider what weather emergency preparation measures the generation entity may be reasonably expected to have taken before ERCOT's inspection, the reliability risk of the resource's noncompliance, and the complexity of the measures needed to cure the deficiency.

(e) Weather-related failures by a generation entity to provide service. For a generation entity with a resource that experiences repeated or major weather-related forced interruptions of service, including forced outages, derates, or maintenance-related outages, the generation entity must contract with a qualified professional engineer who is not an employee of the generation entity or its affiliate and who has not participated in previous assessments for the resource to assess its weather emergency preparation measures, plans, procedures, and operations. The generation entity must submit the qualified professional engineer's assessment to the commission and ERCOT. ERCOT must adopt rules that specify the circumstances for which this requirement applies and specify the scope and contents of the assessment. A generation entity to which this subsection applies may be subject to additional inspections by ERCOT. ERCOT must refer to the commission for enforcement any generation entity that violates this rule and fails to cure the identified deficiencies within a reasonable period of time.

(f) Weather emergency preparedness reliability standards for a transmission service provider.

(1) By December 1, 2021, a transmission service provider must complete the following winter weather preparations for its systems and facilities:

(A) All preparations necessary to ensure the sustained operation of all cold weather critical components during winter weather conditions, including ensuring availability of supplies, such as chemicals, auxiliary fuels, and other materials, and personnel required to operate the transmission system and facilities;

(B) Confirmation of the ability of all systems and subsystems containing cold weather critical components required to operate each of the transmission service provider's substations to ensure operation of each substation within the design and operating limitations addressed in subparagraph (H) of this paragraph;

(C) All actions necessary to prevent a reoccurrence of any cold weather critical component failure that occurred in the period between November 30, 2020 and March 1, 2021;

(D) Provision of training on winter weather preparations to operational personnel;

(E) Confirmation that the sulfur hexafluoride gas in breakers and metering and other electrical equipment is at the correct pressure and temperature to operate safely during extreme cold weather, and performance of annual maintenance that tests sulfur hexafluoride breaker heaters by supporting circuitry to assure that they are functional;

(F) Confirmation of the operability of power transformers in extreme cold temperatures by:

(i) Checking heaters in the control cabinets;

(ii) Verifying that main tank oil levels are appropriate for actual oil temperature;

(iii) Checking bushing oil levels; and

(iv) Checking the nitrogen pressure if necessary.

(G) Determination of the ambient temperature to which the transmission service provider's equipment, such as fire protection systems, are protected, including accounting for the accelerated cooling effect of wind, and confirmation that temperature requirements are met during operations; and

(H) Determination of minimum design temperatures, minimum operating temperatures, and other operating limitations based on temperature, precipitation, humidity, wind speed, and wind direction for substations containing cold weather critical components.

(2) By December 1, 2021, a transmission service provider must submit to the commission and ERCOT, on a form prescribed by ERCOT and developed in consultation with commission staff, a winter-weather readiness report that:

(A) Describes all activities taken by a transmission service provider to complete the requirements of paragraph (1) of this subsection; and

(B) Includes a notarized attestation sworn to by the transmission service provider's highest-ranking representative, official, or officer with binding authority over the transmission service provider, attesting to the completion of all activities described in paragraph (1) of this subsection and the accuracy and veracity of the information described in paragraph (2)(A) of this subsection.

(3) No later than December 10, 2021, ERCOT must file with the commission a summary report of the winter weather readiness reports filed under paragraph (2) of this subsection, including a summary of compliance with the requirements of paragraph (1) and (2) of this subsection and a spreadsheet that delineates compliance with the requirements of paragraph (1) of this subsection for all facilities subject to the requirements.

(4) Good cause exception. A transmission service provider may submit a request for a good cause exception with the commission to specific requirements listed in paragraph (1) of this subsection.

(A) The request must include:

(i) A detailed explanation and supporting documentation of the inability of the transmission service provider to comply with a specific requirement of paragraph (1) of this subsection;

(ii) A detailed description and supporting documentation of the efforts that have been made to comply with paragraph (1) of this subsection;

(iii) A plan, including a schedule and supporting documentation, to comply with the specific requirement of paragraph (1) of this subsection for which the good cause exception is being requested from the commission, including a proposed deadline or deadlines to file updates with the commission on the status of the transmission service provider's compliance and expected compliance date;

(iv) Evidence that notice of the request has been provided to ERCOT; and

(v) A notarized attestation sworn to by the transmission service provider's highest-ranking representative, official, or officer with binding authority over the transmission service provider attesting to the accuracy and veracity of the information in the request.

(B) ERCOT is a required party to the proceeding in which a transmission service provider requests a good cause exception from the commission. ERCOT must make a recommendation to the commission on the request by the deadline set forth by the presiding officer in the proceeding.

(g) Inspections for a transmission service provider.

(1) ERCOT inspections. ERCOT must conduct inspections of transmission systems and facilities for the 2021 - 2022 winter season and must prioritize its inspection schedule based on risk level. ERCOT may prioritize inspections based on factors such as whether a transmission system or facility is critical for electric grid reliability; has experienced a forced outage or other failure related to extreme weather conditions; or has other vulnerabilities related to extreme weather conditions.

(2) ERCOT inspection report. ERCOT must provide a report on its inspection of a transmission system and facilities to the transmission service provider. The inspection report must address whether the system and facilities have complied with the requirements in subsection (f) of this section that ERCOT reviewed for the transmission service provider, and, if the transmission service provider has not complied, provide the transmission service provider a reasonable period to cure the identified deficiencies. The cure period determined by ERCOT must consider what weather emergency preparation measures the transmission service provider may be reasonably expected to have taken before ERCOT's inspection, the reliability risk of the transmission service provider's noncompliance, and the complexity of the measures needed to cure the identified deficiencies.

(h) Weather-related failures by a transmission service provider to provide service. For a transmission service provider with a transmission system or facility that experiences repeated or major weather-related forced interruptions of service, including forced outages, derates, or maintenance-related outages, the transmission service provider must contract with a qualified professional engineer who is not an employee of the transmission service provider or its affiliate and who has not participated in previous assessments for this system or facility to assess its weather emergency preparation measures, plans, procedures, and operations and submit the assessment to the commission and ERCOT. ERCOT must adopt rules that specify the circumstances for which this requirement applies and specify the scope and contents of the assessment. A transmission service provider to which this subsection applies may be subject to additional inspections by ERCOT. ERCOT must refer to the commission for enforcement any transmission service provider that violates this rule and fails to cure the identified system or facility deficiencies within a reasonable period of time.

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 August 26, 2021.

TRD-202103370

Andrea Gonzalez

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: October 10, 2021

For further information, please call: (512) 936-7244


PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 111, Subchapter A, §111.2; Subchapter E, §111.41; Subchapter F, §111.50 and §111.51; Subchapter J, §111.91 and §111.92; and Subchapter V, §111.210 and §111.211; proposes a new rule at Subchapter V, §111.212; and proposes the repeal of existing rules at Subchapter V, §§111.212 - 111.216, and Subchapter X, §§111.230 - 111.232, regarding the Speech-Language Pathologists and Audiologists Program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 111 implement Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists; Chapter 51, the enabling statute of the Texas Commission of Licensing and Regulation (Commission) and the Department; and Chapter 111, Telemedicine and Telehealth.

The proposed rules implement the telehealth emergency rules on a permanent basis; implement SB 40, 87th Legislature, Regular Session (2021); and include changes as a result of the four-year rule review related to telehealth and remote supervision (tele-supervision). The proposed rules also reorganize the current provisions and eliminate duplicative provisions.

Telehealth Emergency Rules

The Commission adopted emergency rules to ensure that services to clients and supervision of certain licensees may continue to be provided through telehealth as was allowed under the waivers that were granted by the Governor during the COVID-19 pandemic. The emergency rules also reflected the change in the statutory authority regarding telehealth. The emergency rules were necessary to protect the public health, safety, and welfare. (Emergency Rules, 46 TexReg 5313, August 27, 2021).

The telehealth emergency rules were effective September 1, 2021. Emergency rules are only effective for 120 days, with one 60-day extension, for a total of 180 days. The current proposed rules implement the emergency rules on a permanent basis.

Implementation of SB 40

Senate Bill (SB) 40, 87th Legislature, Regular Session (2021) added new telehealth provisions and rulemaking authority to Texas Occupations Code, Chapter 51, and repealed the provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice in Texas Occupations Code, Chapters 401 and 402. The joint rules were with the Hearing Instrument Fitters and Dispensers program. These changes became effective immediately.

The proposed rules implement SB 40 as it relates to telehealth, tele-supervision, and the repeal of the statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice. Because SB 40 was effective immediately, the necessary changes related to statutory authority for telehealth were included in the emergency rules (discussed above).

Four-Year Rule Review Changes

The proposed rules include changes as a result of the four-year rule review related to telehealth and tele-supervision. The Department conducted the required four-year rule review of the rules under 16 TAC Chapter 111, and the Commission readopted the rule chapter in its entirety and in its current form. (Proposed Rule Reviews, 45 TexReg 7281, October 9, 2020. Adopted Rule Reviews, 46 TexReg 2050, March 26, 2021).

In response to the Notice of Intent to Review that was published, the Department received 106 public comments regarding 16 TAC Chapter 111. Most of the comments requested rule changes that would make permanent the expanded use of telehealth and tele-supervision for interns and assistants, as was allowed under the Governor's waivers that were issued pursuant to the COVID-19 disaster declaration. These suggested changes are part of the emergency rules and are part of the current proposed rules. The proposed rules also include changes based on the Department's review of the rules during the rule review process related to telehealth and tele-supervision.

Reorganization Changes

The proposed rules consolidate the existing rules, reorganize the existing provisions by subject matter, and eliminate duplicative provisions, as recommended by Department staff.

Advisory Board Recommendation

The proposed rules were presented to and discussed by the Speech-Language Pathologists and Audiologists Advisory Board at its meeting on August 20, 2021. The Advisory Board removed the proposed changes to §111.154, regarding supervisor residency requirements. Those changes are not included in this proposal. Changes were also recommended to §111.210(8) and (9) regarding audiology assistants and the fitting and dispensing of hearing instruments by telehealth. The Advisory Board voted and recommended that the proposed rules with changes be published in the Texas Register for public comment.

Subsequent to the Advisory Board meeting, the recommended changes regarding audiology assistants and the fitting and dispensing of hearing instruments by telehealth were reviewed. Those recommended changes were not included in this proposal, since they conflict with the statute and with other existing rules. In addition, minor clean-up changes were made to the proposal.

SECTION-BY-SECTION SUMMARY

Subchapter A

The proposed rules amend Subchapter A. General Provisions.

The proposed rules amend §111.2, Definitions. The proposed rules combine the separate definitions of "direct supervision" for interns and assistants into one definition. The proposed rules combine the separate definitions of "indirect supervision" for interns and assistants into one definition. The proposed rules allow for direct and indirect supervision to be performed through tele-supervision and not require in-person supervision. The definition of "in-person" has been updated to address services to clients and supervision of licensees. The proposed rules add a new definition of "tele-supervision." This terminology replaces language in the current rules regarding supervising through telehealth or telepractice/telehealth.

Subchapter E

The proposed rules amend Subchapter E. Requirements for Intern in Speech-Language Pathology License.

The proposed rules amend §111.41, Intern in Speech-Language Pathology License--Internship and Supervision Requirements. Subsection (d) is amended to allow interns to receive direct supervision through tele-supervision and not require in-person supervision.

Subchapter F

The proposed rules amend Subchapter F. Requirements for Assistant in Speech-Language Pathology License.

The proposed rules amend §111.50, Assistant in Speech-Language Pathology License--Licensing Requirements--Education and Clinical Observation and Experience. Subsection (e) is amended to allow supervision to be performed through tele-supervision and not require in-person supervision.

The proposed rules amend §111.51, Assistant in Speech-Language Pathology License--Supervision Requirements. Subsection (e) is amended to allow supervision to be performed through tele-supervision and not require in-person supervision. Subsection (g) is amended to eliminate any caps or limits on the number of hours that can be supervised through tele-supervision and to allow direct and indirect supervision to be provided through tele-supervision.

Subchapter J

The proposed rules amend Subchapter J. Requirements for Assistant in Audiology License.

The proposed rules amend §111.91, Assistant in Audiology License--Supervision Requirements. Subsection (f) is amended to eliminate restrictions on the duties that can be supervised by tele-supervision and to allow direct and indirect supervision to be provided through tele-supervision.

The proposed rules amend §111.92, Assistant in Audiology License--Practice and Duties of Assistants. Subsection (c) is amended to allow the assigned duties under paragraphs (1)-(3) to be directly supervised through tele-supervision and not require in-person supervision. Paragraph (4) is amended to remove the requirement for direct supervision of this duty.

Subchapter V

The proposed rules amend Subchapter V. Telehealth.

The proposed rules amend §111.210, Definitions Relating to Telehealth. The section has been updated to consolidate definitions from §111.210 and §111.231 into one section and to eliminate duplicative provisions. Other definitions are found in current §111.2.

The proposed rules make clean-up changes to the definition of "client site." The proposed rules remove the definition of "consultant" and the references and provisions in the rules regarding consultants. The definition of "provider" has been expanded to include speech-language pathology interns, speech-language pathology assistants, and audiology assistants. This change will allow additional licensees to provide telehealth services. The definitions of "facilitator" and "provider site" have been updated to reference "provider" and to make clean-up changes. The definition of "telecommunications technology" is updated to include a smart phone, or any audio-visual, real-time, or two-way interactive communication system.

The proposed rules update the definition of "telehealth" to include assessments, interventions, or consultations regarding a client. For audiologists and audiology interns, the definition has been updated to include the use of telecommunications technology for the fitting and dispensing of hearing instruments.

The proposed rules update the definition of "telehealth services" to include the rendering of audiology and/or speech-language pathology services through telehealth to a client who is physically located at a site other than the site where the provider is located. For audiologists and audiology interns, the definition has been updated to include the fitting and dispensing of hearing instruments through telehealth to a client who is physically located at a site other than the site where the provider is located.

The proposed rules remove the definitions of "telepractice" and "telepractice services." These terms are duplicative with the terms "telehealth" and "telehealth services," which is the terminology used in Occupations Code Chapter 51, as amended by SB 40, and Chapter 111.

The proposed rules amend §111.211, Service Delivery Models of Speech-Language Pathologists. The title of the section has been changed to "Service Delivery Models" to apply to all telehealth providers. The proposed rules remove references to "consultant" and replace references to "telepractice" with "telehealth service."

The proposed rules add a new §111.212, Requirements for Providing Telehealth Services and Using Telehealth. This new section consolidates the separate telehealth rules for speech-language pathologists and audiologists into one new rule. The new rule consolidates the provisions from existing rules §§111.212, 111.214, 111.215, and 111.232; reorganizes the provisions by subject matter; eliminates duplicative provisions; and updates the terminology to use the terms "telehealth" and "telehealth services."

New §111.212(a) addresses the applicability of the subchapter. Except where noted, the subchapter applies to speech-language pathologists, speech-language pathology interns, speech-language pathology assistants, audiologists, audiology interns, audiology assistants, and dual speech-language pathologist and audiologist license holders, as authorized under this subchapter. This subsection also addresses the applicability of other laws.

New §111.212(b) addresses licensure and scope of practice requirements related to providing telehealth services. This subsection also specifies that speech-language pathology assistants and audiology assistants may provide services through telehealth, as directed by their supervisors, according to the specified requirements.

New §111.212(c) addresses competence and standard of practice. The subsection includes provisions regarding provider competence in the services being provided and the methodology and equipment being used; the standard of practice being the same for services provided via telehealth as services provided in-person; and the responsibility of a provider to determine whether a particular service or procedure is appropriate to be provided via telehealth.

New §111.212(d) addresses the use of facilitators to assist a provider in providing telehealth services. This subsection includes provisions regarding the facilitator's qualifications, training, and competence, as appropriate; the tasks that may be performed; the responsibilities of the provider; and the required documentation.

New §111.212(e) addresses technology and equipment. This subsection includes provisions regarding using telecommunications technology and other equipment that the provider is competent to use, and only providing telehealth services if the telecommunications technology and equipment are appropriate for the services to be provided; are properly calibrated, if appropriate, and in good working order; and are of sufficient quality to deliver equivalent service and quality to the client as if those services were provided in-person.

New §111.212(f) addresses client contacts and communications. This subsection provides that the initial contact between a provider and a client may be at the same physical location or through telehealth, as determined appropriate by the provider. For a speech-language pathology assistant, the initial contact with a client must be made by the assistant's supervisor. This subsection requires consideration of certain factors in determining the appropriateness of providing services via telehealth and requires a notification of telehealth services be provided to a client.

New §111.212(g) addresses records and billing. This subsection includes provisions regarding maintenance of client records; documentation of telehealth services; and reimbursement of telehealth services.

New §111.212(h) addresses hearing instruments. This subsection includes a provision regarding digital adjustments of hearing instruments through telecommunications technology by a provider who is an audiologist or an audiology intern.

The proposed rules repeal existing §111.212, Requirements for the Use of Telehealth by Speech-Language Pathologists.

The proposed rules repeal existing §111.213, Limitations on the Use of Telecommunications Technology by Speech-Language Pathologists.

The proposed rules repeal existing §111.214, Requirements for Providing Telehealth Services in Speech-Language Pathology.

The proposed rules repeal existing §111.215, Requirements for Providing Telepractice Services in Audiology.

The proposed rules repeal existing §111.216, Limitations on the Use Telecommunications Technology by Audiologists.

Subchapter X

The proposed rules repeal Subchapter X. Joint Rules for Fitting and Dispensing of Hearing Instruments by Telepractice.

The proposed rules repeal existing §111.230, Purpose. The statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice were repealed by SB 40, effective immediately.

The proposed rules repeal existing §111.231, Definitions. The definitions under §111.231 are included in §111.2 and §111.210, as necessary.

The proposed rules repeal existing §111.232, Requirements for Providing Telehealth Services for the Fitting and Dispensing of Hearing Instruments. The provisions in §111.232 have been consolidated with the provisions in existing §§111.212, 111.214, and 111.215 to create new §111.212 under Subchapter V. Telehealth.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state governments or local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be expanded access to services; an increase in the number of providers who may provide telehealth services; an increase in the number of clients who may receive services; additional flexibility for supervisors and supervisees; a reduction in travel costs; a reduction in the number of office visits; and additional technologies to expand the availability of telehealth.

For those services which may be provided at the same level of quality via telehealth as in-person, a provider could provide services to a larger number of clients living in rural areas or clients with mobility concerns, who may not currently have access to services due to the distance to the nearest provider or difficulty getting to a nearby provider's office.

The proposed rules allow speech-language pathology interns, speech-language pathology assistants, and audiology assistants to be providers of telehealth, under their supervisor's license, which will increase the number of providers and increase the number of clients who may be served through telehealth. The proposed rules lift restrictions on the amount of supervision which may be conducted through tele-supervision, which will provide flexibility to supervisors and supervisees.

For those speech-language pathology or audiology services which may be performed through telehealth, there may be a decrease or elimination of travel costs for the client associated with an in-person office visit versus receiving that same service without the need to travel to a physical office location. There may also be a reduction in travel time and costs for providers, who travel to provide services to their clients. The authorization for providers to use telecommunications technology to remotely digitally program hearing instruments will reduce the number of office visits needed by some clients for those services, as well as travel time and costs.

The inclusion of smartphones in the definition of telecommunications technology expands the availability of telehealth to those who may not have access to computers or Wi-Fi.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no significant economic costs to persons who are required to comply with the proposed rules. The rules do not impose additional fees upon licensees, nor do they create requirements that would cause licensees to expend funds for equipment, technology, staff, supplies, or infrastructure. A provider who wishes to expand services through the use of telehealth, or expand supervision of assistants and interns through tele-supervision, might need new or additional telecommunications technology, but this would be a discretionary cost and not required by the rule changes. Costs to establish telehealth and/or tele-supervision capability are relatively inexpensive, with teleconferencing applications available for free or for prices as low as less than $15 per month, and computer cameras and other hardware are available also at low costs.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

5. The proposed rules do create a new regulation.

6. The proposed rules do expand, limit, or repeal an existing regulation.

7. The proposed rules do increase or decrease the number of individuals subject to the rules' applicability.

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

Existing rules for fitting and dispensing hearing instruments by telepractice are being proposed for repeal and new rules for telehealth services and tele-supervision are being proposed for adoption as part of the updating and clarification of the existing telehealth rules. Rule changes are proposed to implement SB 40, to update current telehealth rules based on the four-year rule review, and to make emergency rules permanent. The proposed rules expand the definitions for telehealth and telecommunications technology. The definition of telehealth provider is also expanded to include speech-language pathology interns, speech-language pathology assistants, and audiology assistants who are providing telehealth services under their supervisor's license, thereby increasing the number of individuals subject to the rule's applicability.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §111.2

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules are also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed rules.

§111.2.Definitions.

Unless the context clearly indicates otherwise, the following words and terms shall have the following meanings.

(1) ABA--The American Board of Audiology.

(2) Act--Texas Occupations Code, Chapter 401, relating to Speech-Language Pathologists and Audiologists.

(3) Acts--Texas Occupations Code, Chapter 401, relating to Speech-Language Pathologists and Audiologists; and Texas Occupations Code, Chapter 402, relating to Hearing Instrument Fitters and Dispensers.

(4) Advisory board--The Speech-Language Pathologists and Audiologists Advisory Board.

(5) ASHA--The American Speech-Language-Hearing Association.

(6) Assistant in audiology--An individual licensed under Texas Occupations Code §401.312 and §111.90 of this chapter and who provides audiological support services to clinical programs under the supervision of an audiologist licensed under the Act.

(7) Assistant in speech-language pathology--An individual licensed under Texas Occupations Code §401.312 and §111.60 of this chapter and who provides speech-language pathology support services under the supervision of a speech-language pathologist licensed under the Act.

(8) Audiologist--An individual who holds a license under Texas Occupations Code §401.302 and §401.304 to practice audiology.

(9) Audiology--The application of nonmedical principles, methods, and procedures for measurement, testing, appraisal, prediction, consultation, counseling, habilitation, rehabilitation, or instruction related to disorders of the auditory or vestibular systems for the purpose of providing or offering to provide services modifying communication disorders involving speech, language, or auditory or vestibular function or other aberrant behavior relating to hearing loss.

(10) Caseload--The number of clients served by the licensed speech-language pathologist or licensed speech-language pathology intern.

(11) Client--A consumer or proposed consumer of audiology or speech-language pathology services.

(12) Commission--The Texas Commission of Licensing and Regulation.

(13) Department--The Texas Department of Licensing and Regulation.

(14) Direct Supervision [related to Assistants] (Speech-Language Pathology and Audiology)--Real-time observation and guidance by the supervisor while a client contact or clinical activity or service is performed by the assistant or intern. Direct supervision may [shall] be performed in person or via tele-supervision [telepractice/telehealth] as authorized and prescribed by this chapter.

[(15) Direct supervision related to Interns (Speech-Language Pathology)--Real-time observation and guidance by the supervisor while a client contact or clinical activity or service is performed by the intern. Telepractice/telehealth may not be used for direct supervision of Speech-Language Pathology Interns.]

(15) [(16)] Ear specialist--A licensed physician who specializes in diseases of the ear and is medically trained to identify the symptoms of deafness in the context of the total health of the client, and is qualified by special training to diagnose and treat hearing loss. Such physicians are also known as otolaryngologists, otologists, neurotologists, otorhinolaryngologists, and ear, nose, and throat specialists.

(16) [(17)] Executive director--The executive director of the department.

(17) [(18)] Extended absence--More than two consecutive working days for any single continuing education experience.

(18) [(19)] Extended recheck--Starting at 40 dB and going down by 10 dB until no response is obtained or until 20 dB is reached and then up by 5 dB until a response is obtained. The frequencies to be evaluated are 1,000, 2,000, and 4,000 hertz (Hz).

(19) [(20)] Fitting and dispensing hearing instruments--The measurement of human hearing by the use of an audiometer or other means to make selections, adaptations, or sales of hearing instruments. The term includes the making of impressions for earmolds to be used as a part of the hearing instruments and any necessary postfitting counseling for the purpose of fitting and dispensing hearing instruments.

(20) [(21)] Hearing instrument--Any wearable instrument or device designed for, or represented as, aiding, improving or correcting defective human hearing. This includes the instrument's parts and any attachment, including an earmold, or accessory to the instrument. The term does not include a battery or cord.

(21) [(22)] Hearing screening--A test administered with pass/fail results for the purpose of rapidly identifying those persons with possible hearing impairment which has the potential of interfering with communication.

(22) [(23)] In-person--The licensee is physically present with the client while a client contact or clinical activity or service is performed. In the case of supervision, the supervisor is physically present with the assistant or intern while a client contact or clinical activity or service is performed. [The supervisor must be physically present, observing the assistant's or the intern's client contact or clinical activity or service. Telepractice/telehealth is not considered in-person.]

(23) [(24)] Indirect supervision [related to Assistants] (Speech-Language Pathology and Audiology)--The supervisor performs monitoring activities or provides guidance to the assistant or intern, either of which does not occur during actual client contact by the assistant or intern or while the assistant or intern is providing a clinical activity or service. Tele-supervision [Telepractice/telehealth] may be used for indirect supervision as authorized and prescribed under this chapter.

[(25) Indirect supervision related to Interns (Speech-Language Pathology)--The supervisor performs monitoring activities or provides guidance to the intern, either of which does not occur during actual client contact by the intern or while the intern is providing a clinical activity or service. Telepractice/telehealthmay be used for indirect supervision as authorized and prescribed under this chapter.]

(24) [(26)] Intern in audiology--An individual licensed under Texas Occupations Code §401.311 and §111.80 of this chapter and who is supervised by an individual who holds an audiology license under Texas Occupations Code §401.302 and §401.304.

(25) [(27)] Intern in speech-language pathology--An individual licensed under Texas Occupations Code §401.311 and §111.40 of this chapter and who is supervised by an individual who holds a speech-language pathology license under Texas Occupations Code §401.302 and §401.304.

(26) [(28)] Intern Plan and Agreement of Supervision Form (for Interns in Speech-Language Pathology and Audiology)--An agreement between a supervisor and an intern in which the parties enter into a supervisory relationship and the supervisor agrees to assume responsibility for all services provided by the intern.

(27) [(29)] Provisional Licensee--An individual granted a provisional license under Texas Occupations Code §401.308.

(28) [(30)] Sale or purchase--Includes the sale, lease or rental of a hearing instrument or augmentative communication device to a member of the consuming public who is a user or prospective user of a hearing instrument or augmentative communication device.

(29) [(31)] Speech-language pathologist--An individual who holds a license under Texas Occupations Code §401.302 and §401.304, to practice speech-language pathology.

(30) [(32)] Speech-language pathology--The application of nonmedical principles, methods, and procedures for measurement, testing, evaluation, prediction, counseling, habilitation, rehabilitation, or instruction related to the development and disorders of communication, including speech, voice, language, oral pharyngeal function, or cognitive processes, for the purpose of evaluating, preventing, or modifying or offering to evaluate, prevent, or modify those disorders and conditions in an individual or a group.

(31) [(33)] Supervisor--An individual who holds a license under Texas Occupations Code §401.302 and §401.304 and whom the department has approved to oversee the services provided by the assigned assistant and/or intern. The term "supervisor" and "department-approved supervisor" have the same meaning as used throughout this chapter.

(32) [(34)] Supervisory Responsibility Statement (SRS) Form (for Assistants in Audiology or Speech-Language Pathology)--An agreement between a supervisor and an assistant in which the parties enter into a supervisory relationship, the supervisor agrees to assume responsibility for the assistant's activities, and the assistant agrees to perform only those activities assigned by the supervisor that are not prohibited under this chapter.

(33) [(35)] Telehealth--See definition(s) in Subchapter V, Telehealth.

(34) Tele-supervision--Supervision of interns or assistants that is provided remotely using telecommunications technology.

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 August 30, 2021.

TRD-202103394

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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


SUBCHAPTER E. REQUIREMENTS FOR INTERN IN SPEECH-LANGUAGE PATHOLOGY LICENSE

16 TAC §111.41

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules are also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed rules.

§111.41.Intern in Speech-Language Pathology License--Internship and Supervision Requirements.

(a) A licensed intern in speech-language pathology (intern) must be supervised by a licensed speech-language pathologist who has been approved by the department to serve as the intern's supervisor (supervisor).

(b) A supervisor must agree to assume responsibility for all services provided by the intern. The supervisor must comply with the requirements set out in the Act and §111.154.

(c) Intern Plan and Agreement of Supervision Form. A Speech-Language Pathology Intern Plan and Agreement of Supervision Form shall be submitted in a manner prescribed by the department and completed by both the applicant and the proposed supervisor. The proposed supervisor must meet the requirements set out in the Act and §111.154.

(1) Approval from the department shall be required prior to practice by the intern. The Speech-Language Pathology Intern Plan and Agreement of Supervision Form shall be submitted upon:

(A) application for an intern license;

(B) any changes in supervision; and

(C) the addition of other supervisors.

(2) If more than one speech-language pathologist agrees to supervise the intern, each proposed supervisor must submit a Speech-Language Pathology Intern Plan and Agreement of Supervision Form.

(3) The intern may not practice without an approved Speech-Language Pathology Intern Plan and Agreement of Supervision Form. The supervisor may not allow an intern to practice before a Speech-Language Pathology Intern Plan and Agreement of Supervision Form is approved.

(4) If the supervisor ceases supervision of the intern, the supervisor shall notify the department, in a manner prescribed by the department, and shall inform the intern to stop practicing immediately. The supervisor is responsible for the practice of the intern until notification has been received by the department.

(5) If the intern's supervisor ceases supervision, the intern shall stop practicing immediately. The intern may not practice until a new Speech-Language Pathology Intern Plan and Agreement of Supervision Form has been submitted to and approved by the department.

(d) Internship Requirements. The internship shall:

(1) be completed within a maximum period of forty-eight (48) months once initiated;

(2) be successfully completed after no more than two attempts;

(3) consist of thirty-six (36) weeks of full-time supervised professional experience (thirty-five (35) hours per week) totaling a minimum of 1,260 hours, or its part-time equivalent, of supervised professional experience in which clinical work has been accomplished in speech-language pathology. Professional experience of less than five hours per week cannot be used to meet the minimum 1,260 hours, but the professional experience still must be supervised by a licensed speech-language pathologist.

(4) involve primarily clinical activities such as assessment, diagnosis, evaluation, screening, treatment, report writing, family/client consultation, and/or counseling related to the management process of individuals who exhibit communication disabilities;

(5) be divided into three (3) segments with no fewer than thirty-six (36) clock hours of supervisory activities to include:

(A) six (6) hours of [in-person] direct supervision per segment by the supervisor(s) of the intern's [direct ] client contact [at the worksite] in which the intern provides screening, evaluation, assessment, habilitation, and rehabilitation; and

(B) six (6) hours of indirect supervision per segment with the supervisor(s) which may include correspondence, review of videos, evaluation of written reports, phone conferences with the intern, evaluations by professional colleagues; or

(C) an alternative plan as approved by the department.

(e) Extension Request. An applicant who does not meet the time frames defined in subsection (d)(1), shall request an extension, in writing, explaining the reason for the request. The request must be signed by both the intern and the supervisor in a manner prescribed by the department. Evaluation of the intern's progress of performance from all supervisors must accompany the request. Intern plans and supervisory evaluations for any completed segments must be submitted in a manner prescribed by the department. The department shall determine if the internship:

(1) should be revised or extended; and

(2) whether additional course work, continuing professional education hours, or passing the examination referenced in §111.21 is required.

(f) Evaluations. During each segment of the internship, each supervisor shall conduct a formal evaluation of the intern's progress in the development of professional skills. Documentation of this evaluation shall be maintained by both parties for three years or until the speech-language pathology license is granted. A copy of this documentation shall be submitted to the department upon request.

(g) Changes in Internship. Prior to implementing changes in the internship, approval from the department is required.

(1) If the intern changes the intern's supervisor or adds additional supervisors, a current Speech-Language Pathology Intern Plan and Agreement of Supervision Form shall be submitted by the new proposed supervisor and approved by the department before the intern may resume practice as prescribed under subsection (c).

(2) If the intern changes the intern's supervisor, the Speech-Language Pathology Report of Completed Internship Form shall be completed by the former supervisor and the intern and submitted to the department upon completion of that portion of the internship. It is the decision of the former supervisor to determine whether the internship is acceptable. The department shall review the form and inform the intern of the results.

(3) Each supervisor who ceases supervising an intern shall submit a Speech-Language Pathology Report of Completed Internship Form for the portion of the internship completed under the supervisor's supervision. This must be submitted within thirty (30) days of the date the supervision ended.

(4) If no hours were earned under an approved supervisor, the licensed intern or the approved supervisor must submit a signed, written statement that no hours were earned and provide the reason.

(5) If the intern changes the intern's employer but the supervisor and the number of hours employed per week remain the same, the supervisor shall notify the department in a manner prescribed by the department of the new location. This must be submitted within thirty (30) days of the date the change occurred.

(h) Notwithstanding the supervision provisions in this section, the department may establish procedures, processes, and mechanisms for the monitoring and reporting of the supervision requirements.

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 August 30, 2021.

TRD-202103395

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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


SUBCHAPTER F. REQUIREMENTS FOR ASSISTANT IN SPEECH-LANGUAGE PATHOLOGY LICENSE

16 TAC §111.50, §111.51

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules are also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed rules.

§111.50.Assistant in Speech-Language Pathology License-Licensing Requirements--Education and Clinical Observation and Experience.

(a) An individual shall not practice as an assistant in speech-language pathology without a current license issued by the department. An applicant for an assistant in speech-language pathology license must meet the requirement under the Act and this section. The applicant must meet the following requirements:

(1) possess a baccalaureate degree with an emphasis in communicative sciences or disorders;

(2) have acquired at least twenty-four (24) semester credit hours in speech-language pathology and/or audiology with a grade of "C" or above with the following conditions:

(A) at least 18 of the 24 semester credit hours must be in speech-language pathology;

(B) at least three (3) of the 24 semester credit hours must be in language disorders;

(C) at least three (3) of the 24 semester credit hours must be in speech disorders;

(D) the 24 semester credit hours excludes course work such as special education, deaf education, or sign language; and

(E) the 24 semester credit hours must be academic course work and excludes any clinical experience; and

(3) have earned no fewer than twenty-five (25) hours of clinical observation in the area of speech-language pathology and twenty-five (25) hours of clinical assisting experience in the area of speech-language pathology obtained within an educational institution or in one of its cooperating programs. If these hours are not completed, the applicant must complete the Clinical Deficiency Plan under subsection (e).

(b) The baccalaureate degree shall be completed at a college or university which has a program accredited by the ASHA Council on Academic Accreditation or holds accreditation or candidacy status from a recognized regional accrediting agency.

(1) Original or certified copy of the transcripts showing the conferred degree shall be submitted and reviewed as follows:

(A) only course work earned within the past ten (10) years with a grade of "C" or above is acceptable;

(B) a quarter hour of academic credit shall be considered as two-thirds of a semester credit hour; and

(C) academic courses, the titles of which are not self-explanatory, shall be substantiated through course descriptions in official school catalogs or bulletins or by other official means.

(2) In the event the course work and clinical experience set out in subsection (a), were earned more than ten (10) years before the date of application for the assistant license, the applicant shall submit proof of current knowledge of the practice of speech-language pathology to be evaluated by the department. Proof of current knowledge may include: recently completing continuing education or other courses; or holding a current license in another state.

(c) An applicant who possesses a baccalaureate degree with a major that is not in communicative sciences or disorders may qualify for the assistant license. The department shall evaluate transcripts on a case-by-case basis to ensure equivalent academic preparation, and shall determine if the applicant satisfactorily completed twenty-four (24) semester credit hours in communicative sciences or disorders and meets the requirements of §111.50(b)(2), which may include some leveling hours.

(d) Degrees and/or course work received at foreign universities shall be acceptable only if such course work and clinical practicum hours may be verified as meeting the requirements of subsection (a). The applicant must bear all expenses incurred during the procedure. The department shall evaluate the documentation, which shall include an original transcript and an original report from a credential evaluation services agency acceptable to the department.

(e) An applicant who has not acquired the twenty-five (25) hours of clinical observation and twenty-five (25) hours of clinical experience referenced in subsection (a)(3), shall not meet the minimum qualifications for the assistant license. These hours must be obtained through an accredited college or university, or through a Clinical Deficiency Plan. All hours must be completed under [in-person,] direct supervision. In order to acquire these hours, the applicant shall first obtain the assistant license by submitting the forms, fees, and documentation referenced in §111.55 and include the prescribed Clinical Deficiency Plan to acquire the clinical observation and clinical assisting experience hours lacking.

(1) The licensed speech-language pathologist who will provide the applicant with the training to acquire these hours must meet the requirements set out in the Act and §111.154 and shall submit:

(A) the Supervisory Responsibility Statement Form prescribed under §111.51; and

(B) the prescribed Clinical Deficiency Plan.

(2) The department shall evaluate the documentation and fees submitted to determine if the assistant license shall be issued. Additional information or revisions may be required before approval is granted.

(3) The Clinical Deficiency Plan shall be completed within sixty (60) days of the issue date of the assistant's license or the licensed assistant must submit a new plan.

(4) Immediately upon completion of the Clinical Deficiency Plan, the licensed speech-language pathologist identified in the plan shall submit a statement or information that the licensed assistant successfully completed the clinical observation and clinical assisting experience and that all hours worked by the licensed assistant were under the in-person, direct supervision of the licensed speech-language pathologist. This statement shall specify the number of hours completed and verify completion of the training identified in the Clinical Deficiency Plan.

(5) Department staff shall evaluate the documentation required in paragraph (4) and inform the licensed assistant and licensed speech-language pathologist who provided the training if acceptable.

(6) A licensed assistant may continue to practice under the in-person, direct supervision of the licensed speech-language pathologist who provided the licensed assistant with the training while the department evaluates the documentation identified in paragraph (4). All hours worked by the licensed assistant must be under the in-person, direct supervision of the licensed speech-language pathologist.

(7) In the event another licensed speech-language pathologist shall supervise the licensed assistant after completion of the Clinical Deficiency Plan, a Supervisory Responsibility Statement Form shall be submitted to the department seeking approval for the change in supervision. If the documentation required by paragraph (4), has not been received and approved by the department, approval for the change in supervision shall not be granted.

§111.51.Assistant in Speech-Language Pathology License--Supervision Requirements.

(a) A licensed assistant in speech-language pathology (assistant) must be supervised by a licensed speech-language pathologist who has been approved by the department to serve as the assistant's supervisor (supervisor).

(b) A supervisor must agree to assume responsibility for all services provided by the assistant. The supervisor must comply with the requirements set out in the Act and §111.154.

(c) Supervisory Responsibility Statement Form. A Supervisory Responsibility Statement Form shall be submitted in a manner prescribed by the department by both the applicant and the proposed supervisor. The proposed supervisor must meet with the requirements set out in the Act and §111.154.

(1) Approval from the department shall be required prior to practice by the assistant. The Supervisor Responsibility Statement Form shall be submitted upon:

(A) application for an assistant license;

(B) any changes in supervision; and

(C) the addition of other supervisors.

(2) If more than one speech-language pathologist agrees to supervise the assistant, each proposed supervisor must submit a separate Supervisor Responsibility Statement Form in manner prescribed by the department.

(3) The assistant may not practice without an approved Supervisor Responsibility Statement Form. The supervisor may not allow an assistant to practice before a Supervisor Responsibility Statement Form is approved.

(4) The assistant shall only provide services for the caseload of the assistant's supervisors who have current Supervisor Responsibility Statement Forms on file with the department.

(5) If the supervisor ceases supervision of the assistant, the supervisor shall notify the department, in a manner prescribed by the department, and shall inform the assistant to stop practicing immediately. The supervisor is responsible for the practice of the assistant until notification has been received by the department.

(6) If the assistant's supervisor ceases supervision, the assistant shall stop practicing immediately. The assistant may not practice until a new Supervisor Responsibility Statement Form has been submitted to and approved by the department.

(d) The supervisor shall assign duties and provide appropriate supervision to the assistant.

(e) Direct supervision of the assistant may only occur when [at the worksite in which] the assistant provides services to existing clients or while the assistant provides services to cases previously delegated to the assistant. The supervisor may not make temporary, short-term assignments from the supervisor's caseload to the assistant in order to fulfill direct supervision requirements.

(f) Client Contacts.

(1) Initial contacts directly with the client shall be conducted by the supervisor.

(2) Following the initial contact, the supervisor shall determine whether the assistant has the competence to perform specific duties before delegating tasks.

(g) Amount and Type of Supervision. Each supervisor shall provide a minimum of eight (8) hours per calendar month of supervision to the assistant. This subsection applies whether the assistant is employed full-time or part-time.

(1) At least four (4) hours must be direct supervision. [At least two (2) of the direct supervision hours must be in-person. The other two (2) hours may be in-person or by telehealth/telepractice.]

(2) The remaining hours may be performed using indirect supervision.

(3) If fewer than four (4) weeks are worked in a calendar month, then the number of hours of supervision provided will be based on the number of weeks worked. Two (2) hours of supervision must be provided for each week worked, including one (1) hour of direct supervision and one (1) hour of indirect supervision.

(4) Tele-supervision may be used for direct and indirect supervision. [For the purposes of this subsection the telehealth/telepractice provisions allowed by Subchapter V may be used for up to six (6) hours of supervision (two (2) hours of direct supervision and four (4) hours of indirect supervision).]

(5) When determining the amount and type of supervision, the supervisor must consider the skill and experience of the assistant as well as the services to be provided. The supervision hours established in this subsection may be exceeded as determined by the supervisor.

(h) Delegating Clinical Tasks.

(1) The supervisor may delegate specific clinical tasks to an assistant; however, the responsibility to the client for all services provided cannot be delegated.

(2) The supervisor shall ensure that all services are documented and provided in compliance with the Act and this chapter.

(3) The supervisor shall:

(A) in writing, determine the skills and assigned tasks the assistant is able to carry out under §111.52. This document must be agreed upon by the assistant and the supervisor;

(B) notify the client or client's legal guardian(s) that services will be provided by a licensed assistant;

(C) develop the client's treatment program in all settings and review it with the assistant who will provide the service; and

(D) maintain responsibility for the services provided by the assistant.

(i) Admission, Review, and Dismissal Meetings. The supervisor, prior to an Admission, Review and Dismissal (ARD) meeting, shall:

(1) notify the parents of students with speech impairments that services will be provided by the assistant and that the assistant will represent Speech Pathology at the ARD;

(2) develop the student's new Individual Education Program (IEP) goals and objectives and review them with the assistant; and

(3) maintain undiminished responsibility for the services provided and the actions of the assistant.

(j) Records. The supervisor shall maintain the following records.

(1) The supervisor shall maintain for a period of three years supervisory records that verify regularly scheduled monitoring, assessment, and evaluation of the assistant's and client's performance. Such documentation may be requested by the department.

(2) The supervisor shall keep job descriptions and performance records of the assistant. Records shall be current and made available upon request to the department.

(k) Supervision Audits. The department may audit a random sampling of assistants for compliance with this section and §111.154.

(1) The department shall notify the assistant and the supervisor in a manner prescribed by the department that the assistant has been selected for an audit.

(2) Upon receipt of an audit notification, the assistant and the supervisor shall provide in a manner prescribed by the department the requested proof of compliance to the department.

(3) The assistant and the supervisor shall comply with the department's request for documentation and information concerning compliance with the audit.

(l) Notwithstanding the supervision provisions in this section, the department may establish procedures, processes, and mechanisms for the monitoring and reporting of the supervision requirements.

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 August 30, 2021.

TRD-202103397

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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


SUBCHAPTER J. REQUIREMENTS FOR ASSISTANT IN AUDIOLOGY LICENSE

16 TAC §111.91, §111.92

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules are also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed rules.

§111.91.Assistant in Audiology License--Supervision Requirements.

(a) A licensed assistant in audiology (assistant) must be supervised by a licensed audiologist who has been approved by the department to serve as the assistant's supervisor (supervisor).

(b) A supervisor must agree to assume responsibility for all services provided by the assistant. The supervisor must comply with the requirements set out in the Act and §111.154.

(c) Supervisory Responsibility Statement Form. A Supervisory Responsibility Statement Form shall be submitted in a manner prescribed by the department by both the applicant and the proposed supervisor. The proposed supervisor must meet the requirements set out in the Act and §111.154.

(1) Approval from the department shall be required prior to practice by the licensed assistant in audiology. The Supervisory Responsibility Statement for an Assistant in Audiology Form shall be submitted upon:

(A) application for a license;

(B) any changes in supervision; and

(C) addition of other supervisors.

(2) If more than one audiologist agrees to supervise the assistant, each proposed supervisor must submit a separate Supervisory Responsibility Statement Form in a manner prescribed by the department.

(3) The assistant may not practice without an approved Supervisor Responsibility Statement Form. The supervisor may not allow an assistant to practice before a Supervisor Responsibility Statement Form is approved.

(4) The assistant shall only provide services for the caseload of the assistant's supervisors who have current Supervisor Responsibility Statement Forms on file with the department.

(5) If the supervisor ceases supervision of the assistant, the supervisor shall notify the department, in a manner prescribed by the department, and shall inform the assistant to stop practicing immediately. The supervisor is responsible for the practice of the assistant until notification has been received by the department.

(6) If the assistant's supervisor ceases supervision, the assistant shall stop practicing immediately. The assistant may not practice until a new Supervisor Responsibility Statement Form has been submitted to and approved by the department.

(d) A supervisor shall assign duties and provide appropriate supervision to the assistant.

(e) Client Contacts.

(1) All diagnostic contacts shall be conducted by the supervisor.

(2) Following the initial diagnostic contact, the supervisor shall determine whether the assistant has the competence to perform specific non-diagnostic and non-prohibited duties before delegating tasks as referenced in §111.92(c).

(f) Amount and Type of Supervision. Each supervisor must provide a minimum of ten (10) hours per week, or forty (40) hours per calendar month, of supervision to the assistant. This subsection applies whether the assistant is employed full-time or part-time.

(1) At least one (1) hour per week, or four (4) hours per calendar month, must be direct supervision.

(2) The remaining hours may be performed using indirect supervision.

(3) If fewer than four (4) weeks are worked in a calendar month, then the number of hours of supervision provided will be based on the number of weeks worked. Ten (10) hours of supervision must be provided for each week worked, including one (1) hour of direct supervision.

[(4) The supervisor shall provide in-person, direct supervision for the duties described under §111.92(c)(1) - (4).]

(4) [(5)] Tele-supervision may be used for direct and indirect supervision. [For the purposes of this subsection, the telehealth and telepractice provisions described under §111.215 may be used except for duties described under §111.92(c)(1) - (4) where the supervisor must provide in-person, direct supervision.]

(5) [(6)] When determining the amount and type of supervision, the supervisor must consider the skill and experience of the assistant as well as the services to be provided. The supervision hours established in this paragraph may be exceeded as determined by the supervisor.

(g) Delegating Clinical Tasks.

(1) Although the supervisor may delegate specific clinical tasks to an assistant, the responsibility to the client for all services provided cannot be delegated.

(2) The supervisor shall ensure that all services are documented and provided in compliance with the Act and this chapter.

(3) The supervisor shall:

(A) in writing, determine the skills and assigned tasks the assistant is able to carry out under §111.92. This document must be agreed upon by the assistant and the supervisor;

(B) notify the client or client's legal guardian(s) that services will be provided by a licensed assistant; and

(C) maintain responsibility for the services provided by the assistant.

(h) Records. The supervisor shall maintain the following records.

(1) Supervisory records shall be maintained by the supervisor for a period of three years which verify regularly scheduled monitoring, assessment, and evaluation of the assistant's and client's performance. Such documentation may be requested by the department.

(2) The supervisor shall keep job descriptions and performance records. Records shall be current and be made available upon request to the department.

(i) Supervision Audits. The department may audit a random sampling of assistants for compliance with this section and §111.154.

(1) The department shall notify an assistant and the supervisor in a manner prescribed by the department that the assistant has been selected for an audit.

(2) Upon receipt of an audit notification, the assistant and the supervisor, who agreed to accept responsibility for the services provided by the assistant, shall provide the requested proof of compliance to the department in a manner prescribed by the department.

(3) The assistant and the supervisor shall comply with the department's request for documentation and information concerning compliance with the audit.

(j) Notwithstanding the supervision provisions in this section, the department may establish procedures, processes, and mechanisms for the monitoring and reporting of the supervision requirements.

§111.92.Assistant in Audiology License--Practice and Duties of Assistants.

(a) A licensed assistant in audiology (assistant) must perform assigned duties under the supervision of a licensed audiologist who has been approved by the department to serve as the assistant's supervisor (supervisor).

(b) The assistant may execute specific components of the clinical hearing program if the supervisor:

(1) determines that the assistant has received the training and has the skill to accomplish that task; and

(2) provides sufficient supervision to ensure appropriate completion of the task assigned to the assistant.

(c) Duties that a supervisor may assign to an assistant, who has received appropriate training, include the following:

(1) under [in-person,] direct supervision, conduct or participate in, hearing screening including screening otoscopy, tympanometry, otoacoustic emissions procedures and pure tone air conduction procedures, but may not diagnose hearing loss or disorders of the auditory system, or make statements of severity or implication;

(2) under [in-person,] direct supervision, assist the audiologist with play audiometry, visual reinforcement audiometry, and tasks such as picture-pointing speech audiometry;

(3) under [in-person,] direct supervision, assist the audiologist in the evaluation of difficult-to-test patients;

(4) under [in-person,] direct supervision, assist the audiologist with technical tasks for diagnostic evaluation such as preparing test rooms, attaching electrodes, and preparing patients prior to procedures;

(5) maintain clinical records;

(6) prepare clinical materials;

(7) participate with the supervisor in research projects, staff development, public relations programs, or similar activities as designated and supervised by the supervisor;

(8) maintain equipment by conducting biologic and electroacoustic calibration of audiometric equipment, perform preventative maintenance checks and safety checks of equipment;

(9) explain the proper care of hearing instruments and assistive listening devices to patients;

(10) maintain hearing instruments including cleaning, replacing ear mold tubing, minor hearing instrument repairs, determining need for repair, and performing biologic and electroacoustic checks of hearing instruments;

(11) provide case history and/or self-assessment forms and clarify questions on the forms to patients as needed;

(12) conduct basic record keeping and prepare paperwork for signature by the audiologist;

(13) coordinate ear mold and hearing instrument records or repairs and other orders;

(14) attach hearing aids to computers and use software to verify internal electroacoustic settings; and

(15) perform other non-diagnostic duties not prohibited in subsection (d), for which the assistant has been trained and demonstrates appropriate skills, as assigned by the supervisor.

(d) The assistant shall not:

(1) conduct aural habilitation or rehabilitation activities or therapy;

(2) provide carry-over activities (therapeutically designed transfer of a newly acquired communication ability to other contexts and situations) for patients in aural rehabilitation therapy;

(3) collect data during aural rehabilitation therapy documenting progress and results of therapy;

(4) administer assessments during aural rehabilitation therapy to assess therapeutic progress;

(5) conduct any audiological procedure that requires decision-making or leads to a diagnosis;

(6) interpret results of procedures and evaluations, except for screening tests;

(7) make diagnostic statements, or propose or develop clinical management strategies;

(8) make ear impressions;

(9) cause any substance to enter the ear canal or place any instrument or object in the ear canal for the purpose of removing cerumen or debris;

(10) make any changes to the internal settings of a hearing instrument manually or using computer software;

(11) represent audiology at staffing meetings or on an admission, review and dismissal (ARD) committee;

(12) attend staffing meetings or ARD committee meetings without the supervisor being present;

(13) design a treatment program;

(14) determine case selection;

(15) present written or oral reports of client information, except to the assistant's supervisor;

(16) refer a client to other professionals or other agencies;

(17) use any title which connotes the competency of a licensed audiologist; or

(18) practice as an assistant without a valid Supervisory Responsibility Statement for an Audiology Assistant Form on file with the department.

(e) In any professional context the assistant must indicate the assistant's status as a licensed audiology assistant.

(f) A licensed assistant in audiology may not engage in the fitting, dispensing or sale of a hearing instrument under this chapter; however, a licensed assistant in audiology who is licensed under the Texas Occupations Code, Chapter 402 may engage in activities as allowed by that law and is not considered to be functioning under the person's assistant in audiology license when performing those activities.

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 August 30, 2021.

TRD-202103399

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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


SUBCHAPTER V. TELEHEALTH

16 TAC §§111.210 - 111.212

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules are also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed rules.

§111.210.Definitions Relating to Telehealth.

Unless the context clearly indicates otherwise, the following words and terms, when used in this subchapter, shall have the following meanings.

(1) Client--A consumer or proposed consumer of speech-language pathology or audiology services.

(2) Client site--The physical location of the client at the time the telehealth services are being provided [furnished via telecommunications].

[(3) Consultant--Any professional who collaborates with a provider of telehealth services to provide services to clients.]

(3) [(4)] Facilitator--The individual at the client site who assists with the delivery of the telehealth services at the direction of the provider [audiologist or speech-language pathologist].

(4) [(5)] Provider--An individual who holds a current[, renewable, unrestricted] speech-language pathology, [or] audiology, or dual license under Texas Occupations Code §401.302 and §401.304; [or] an individual who holds a current speech-language pathology intern or an audiology intern license under Texas Occupations Code §401.311; or an individual who holds a current speech-language pathology assistant license under Texas Occupations Code §401.312.

(5) [(6)] Provider site--The physical location of [at which] the provider [speech-language pathologist or audiologist delivering the services is located] at the time the telehealth services are provided [via telecommunications] which is distant or remote from the client site.

(6) [(7)] Telecommunications--Interactive communication at a distance by concurrent two-way transmission, using telecommunications technology, of information, including, without limitation, sound, visual images, and/or computer data, between the client site and the provider site, and required to occur without a change in the form or content of the information, as sent and received, other than through encoding or encryption of the transmission itself for purposes of and to protect the transmission.

(7) [(8)] Telecommunications technology--Computers, smart phones, and equipment, other than analog telephone, email or facsimile technology and equipment, used or capable of use for purposes of telecommunications. For purposes of this subchapter, the term includes, without limitation:

(A) compressed digital interactive video, audio, or data transmission;

(B) clinical data transmission using computer imaging by way of still-image capture and storage and forward; [and]

(C) smart phones, or any audio-visual, real-time, or two-way interactive communication system; and

(D) [(C)] other technology that facilitates the delivery of telehealth [telepractice] services.

(8) [(9)] Telehealth--The use of telecommunications and information technologies for the exchange of information from one site to another for the provision of speech-language pathology or audiology services to a client from a provider, including for assessments, interventions, or consultations regarding a speech-language pathology or audiology client. For a provider who is an audiologist or an audiology intern, telehealth includes the use of telecommunications technology for the fitting and dispensing of hearing instruments. Telehealth is also referred to as telepractice.

(9) [(10)] Telehealth services--The application of telecommunication technology to deliver speech-language pathology and/or audiology services at a distance for assessment, intervention, and/or consultation, including the rendering of audiology and/or speech-language pathology services through telehealth to a client who is physically located at a site other than the site where the provider is located. For a provider who is an audiologist or an audiology intern, telehealth services includes the fitting and dispensing of hearing instruments through telehealth to a client who is physically located at a site other than the site where the provider is located. Telehealth services are also referred to as telepractice services.

[(11) Telepractice--The use of telecommunications technology by a license holder for an assessment, intervention, or consultation regarding a speech-language pathology or audiology client.]

[(12) Telepractice services--The rendering of audiology and/or speech-language pathology services through telepractice to a client who is physically located at a site other than the site where the provider is located.]

§111.211.Service Delivery Models [of Speech-Language Pathologists].

(a) Telehealth may be delivered in a variety of ways, including, but not limited to those set out in this section.

(1) Store-and-forward model/electronic transmission is an asynchronous electronic transmission of stored clinical data from one location to another.

(2) Clinician interactive model is a synchronous, real time interaction between the provider and client [or consultant] that may occur via telecommunication links.

(b) Self-monitoring/testing model refers to when the client [or consultant] receiving the services provides data to the provider without a facilitator present at the site of the client [or consultant].

(c) Live versus stored data refers to the actual data transmitted during the telehealth service [telepractice]. Both live, real-time and stored clinical data may be included during the telehealth service [telepractice].

§111.212.Requirements for Providing Telehealth Services and Using Telehealth.

(a) Applicability.

(1) Except where noted, this subchapter applies to speech-language pathologists, speech-language pathology interns, speech-language pathology assistants, audiologists, audiology interns, audiology assistants, and dual speech-language pathologist and audiologist license holders, as authorized under this subchapter.

(2) Except to the extent it imposes additional or more stringent requirements, this subchapter does not affect the applicability of any other requirement or provision of law to which an individual is otherwise subject under this chapter or other law.

(b) Licensure and Scope of Practice.

(1) An individual shall not provide telehealth services to a client in the State of Texas, unless the individual is licensed by the department and qualifies as a provider as that term is defined in this subchapter, or is otherwise legally authorized to do so.

(2) A provider may provide only those telehealth services that are within the course and scope of the provider's license and competence, and delivered in accordance with the requirements of that license and pursuant to the terms and conditions set forth in this chapter.

(3) A provider who is a speech-language pathology assistant may provide services through telehealth, as directed by their supervisor, according to the speech-language pathology assistant supervision requirements and the practice and duties under 16 TAC §111.51 and §111.52. A provider who is an audiology assistant may provide services through telehealth, as directed by their supervisor, according to the audiology assistant supervision requirements and the practice and duties under 16 TAC §111.91 and §111.92.

(c) Competence and Standard of Practice (Code of Ethics).

(1) A provider of telehealth services shall be competent in both the type of services provided and the methodology and equipment used to provide the service.

(2) A provider shall comply with the code of ethics and scope of practice requirements in this chapter when providing telehealth services.

(3) The scope, nature, and quality of the services provided via telehealth shall be the same as the services provided in-person.

(4) A provider shall determine whether a particular service or procedure is appropriate to be provided via telehealth. A provider shall not provide a service or procedure via telehealth if it is not appropriate or cannot be provided at the same standard of care as if it were provided in-person.

(5) As pertaining to liability and malpractice issues, a provider providing telehealth services shall be held to the same standards of practice as if the services were provided in person.

(d) Facilitators.

(1) Subject to the requirements and limitations of this subchapter, a provider may utilize a facilitator at the client site to assist the provider in providing telehealth services.

(2) A provider shall document whether a facilitator is used in providing telehealth services. If a facilitator is used, the provider shall document the tasks in which the facilitator provided assistance.

(3) Before allowing a facilitator to assist the provider in providing telehealth services, the provider shall ascertain and document the facilitator's qualifications, training, and competence, as appropriate and reasonable, in:

(A) each task the provider directs the facilitator to perform at the client site; and

(B) the methodology and equipment the facilitator is to use at the client site.

(4) The facilitator may perform at the client site only the following tasks:

(A) a task for which the facilitator holds and acts in accordance with any license, permit, authorization, or exemption required by law to perform the task; and

(B) those physical, administrative, and other tasks for which a provider determines a facilitator is competent to perform in connection with the provision of audiology or speech-language pathology services, for which no form of license, permit, authorization, or exemption is required by law.

(5) A provider is responsible for the actions of the facilitator and shall monitor the client and oversee and direct the facilitator at all times during the telehealth session.

(e) Technology and Equipment.

(1) The provider shall use only telecommunications technology, as defined in this subchapter, to provide telehealth services. Modes of communication that do not utilize such telecommunications technology, including analog telephone, facsimile, and email, may be used only as adjuncts.

(2) A provider shall only utilize telecommunications technology and other equipment that the provider is competent to use as part of the provider's telehealth services.

(3) The provider shall not provide telehealth services unless the telecommunications technology and equipment located at the client site and at the provider site:

(A) are appropriate to the telehealth services to be provided;

(B) are properly calibrated, if appropriate, and in good working order; and

(C) are of sufficient quality to allow the provider to deliver equivalent service and quality to the client as if those services were provided in person at the same physical location.

(f) Client Contacts and Communications.

(1) The initial contact between a provider and client may be at the same physical location or through telehealth, as determined appropriate by the provider. For a provider who is a speech-language pathology assistant, the initial contact with a client must be made by the assistant's supervisor.

(2) A provider shall consider relevant factors including the client's behavioral, physical, and cognitive abilities in determining the appropriateness of providing services via telehealth.

(3) A provider shall be aware of the client's level of comfort with the technology being used as part of the telehealth services.

(4) A provider shall be sensitive to cultural and linguistic variables that affect the identification, assessment, treatment, and management of the clients.

(5) Notification of telehealth services shall be provided to the client, the guardian, the caregiver, and the multi-disciplinary team, if appropriate. The notification shall include, but not be limited to: the right to refuse telehealth services, options for service delivery, and instructions on filing and resolving complaints.

(g) Records and Billing.

(1) A provider of telehealth services shall comply with all laws, rules, and regulations governing the maintenance of client records, including client confidentiality requirements.

(2) Documentation of telehealth services shall include documentation of the date and nature of services performed by the provider through telehealth and the assistive tasks of the facilitator, if used.

(3) A provider is allowed to provide telehealth services in accordance with this subchapter, but reimbursement of telehealth services is subject to the reimbursement policies of the entity being billed.

(h) Hearing Instruments. Hearing instruments may be adjusted digitally through the use of telecommunications technology by a provider who is an audiologist or an audiology intern and who provides telehealth services under this subchapter.

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 August 30, 2021.

TRD-202103400

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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


16 TAC §§111.212 - 111.216

STATUTORY AUTHORITY

The proposed repeals are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed repeals are also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the proposed repeals are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed repeal.

§111.212.Requirements for the Use of Telehealth by Speech-Language Pathologists.

§111.213.Limitations on the Use of Telecommunications Technology by Speech-Language Pathologists.

§111.214.Requirements for Providing Telehealth Services in Speech-Language Pathology.

§111.215.Requirements for Providing Telepractice Services in Audiology.

§111.216.Limitations on the Use of Telecommunications Technology by Audiologists.

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 August 30, 2021.

TRD-202103401

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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


SUBCHAPTER X. JOINT RULES FOR FITTING AND DISPENSING OF HEARING INSTRUMENTS BY TELEPRACTICE

16 TAC §§111.230 - 111.232

STATUTORY AUTHORITY

The proposed repeals are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed repeals are also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the proposed repeals are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed repeal.

§111.230.Purpose.

§111.231.Definitions.

§111.232.Requirements for Providing Telehealth Services for the Fitting and Dispensing of Hearing Instruments.

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 August 30, 2021.

TRD-202103402

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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


CHAPTER 112. HEARING INSTRUMENT FITTERS AND DISPENSERS

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 112, Subchapter A, §112.2; proposes new rules at Subchapter N, §112.130 and §112.132; and proposes the repeal of an existing rule at Subchapter P, §112.150, regarding the Hearing Instrument Fitters and Dispensers program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 112 implement Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers; Chapter 51, the enabling statute of the Texas Commission of Licensing and Regulation (Commission) and the Department; and Chapter 111, Telemedicine and Telehealth.

The proposed rules implement the telehealth emergency rules on a permanent basis; implement SB 40, 87th Legislature, Regular Session (2021); and include changes as a result of the four-year rule review related to telehealth. The proposed rules also reorganize the existing provisions.

Telehealth Emergency Rules

The Commission adopted emergency rules to ensure that services to clients may continue to be provided through telehealth as was allowed under the waivers that were granted by the Governor during the COVID-19 pandemic. The emergency rules also reflected the change in the statutory authority regarding telehealth. The emergency rules were necessary to protect the public health, safety, and welfare. (Emergency Rules, 46 TexReg 5327, August 27, 2021).

The telehealth emergency rules were effective September 1, 2021. Emergency rules are only effective for 120 days, with one 60-day extension, for a total of 180 days. The current proposed rules implement the emergency rules on a permanent basis.

Implementation of SB 40

Senate Bill (SB) 40, 87th Legislature, Regular Session (2021) added new telehealth provisions and rulemaking authority to Texas Occupations Code, Chapter 51, and repealed the provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice in Texas Occupations Code, Chapters 401 and 402. The joint rules were with the Speech-Language Pathologists and Audiologists program. These changes became effective immediately.

The proposed rules implement SB 40 as it relates to telehealth and the repeal of the statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice. Because SB 40 was effective immediately, the necessary changes related to statutory authority for telehealth were included in the emergency rules (discussed above).

Four-Year Rule Review Changes

The proposed rules include changes as a result of the four-year rule review related to telehealth. The Department conducted the required four-year rule review of the rules under 16 TAC Chapter 112, and the Commission readopted the rule chapter in its entirety and in its current form. (Proposed Rule Reviews, 45 TexReg 7281, October 9, 2020. Adopted Rule Reviews, 46 TexReg 2050, March 26, 2021).

In response to the Notice of Intent to Review that was published, the Department received two public comments regarding 16 TAC Chapter 112. One of the comments suggested changes to the joint rules for fitting and dispensing hearing instruments by telepractice. This comment suggested changing the terminology and the definition of "hearing instrument" under 16 TAC §112.150(b). The Department did not make the suggested change, since this is the same terminology and definition that is included in Texas Occupations Code §402.001 and 16 TAC §112.2. The proposed rules, however, include changes based on the Department's review of the rules during the rule review process related to telehealth.

Reorganization Changes

The proposed rules create a new subchapter for the new telehealth rules and relocate and reorganize the existing provisions by subject matter, as recommended by Department staff.

Advisory Board Recommendation

The proposed rules were presented to and discussed by the Hearing Instrument Fitters and Dispensers Advisory Board at its meeting on August 25, 2021. The Advisory Board made a small change to the definition of "telecommunications" under proposed new §112.130(7). The Advisory Board voted and recommended that the proposed rules with the noted change be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

Subchapter A

The proposed rules amend Subchapter A. General Provisions.

The proposed rules amend §112.2, Definitions. The proposed rules add a definition of "telehealth" with a cross-reference to the definitions under new Subchapter N. Telehealth.

Subchapter N

The proposed rules add new Subchapter N. Telehealth.

The proposed rules add new §112.130, Definitions Relating to Telehealth. This new section includes definitions from §112.150(b), as necessary. Other definitions are found in existing §112.2.

The proposed rules make clean-up changes to the definitions of "client site," "facilitator," and "provider site." The proposed rules add a definition of "in-person." The definition of "provider" has been expanded to include apprentice permit holders and temporary training permit holders who have completed the direct supervision training requirements. This change will allow additional providers to provide telehealth services.

The definition of "telecommunications" is updated to include the word "synchronous." The definition of "telecommunications technology" is updated to include a smart phone, or any audio-visual, real-time, or two-way interactive communication system, and to clarify the current reference to telephone in the definition.

The proposed rules replace the term "telepractice" with the term "telehealth." This change provides consistency in terminology across provisions and reflects the terminology used in Texas Occupation Code, Chapter 51, as amended by S.B. 40, and Texas Occupations Code, Chapter 111, Telemedicine and Telehealth. The reference to "telepractice" was found in Texas Occupations Code §402.1023, which was repealed.

The proposed rules update the definition of "telehealth" (formerly "telepractice") to provide for the use of telecommunications and information technologies for the exchange of information from one site to another for the provision of services to a client from a provider, and to include assessments, interventions, or consultations regarding a client. The proposed rules update the definition of "telehealth services" to include assessments, interventions, and/or consultations regarding a client.

The proposed rules add new §112.132, Requirements for Providing Telehealth Services and Using Telehealth. This new section contains most of the provisions under §112.150(c)-(n). These provisions have been reorganized by subject matter with the new provisions, and the terminology has been updated to use the terms "telehealth" and "telehealth services."

New §112.132(a) addresses the applicability of the subchapter. Except where noted, the subchapter applies to hearing instrument fitters and dispensers, apprentice permit holders, and temporary training permit holders, as authorized under this subchapter. This subsection also addresses the applicability of other laws.

New §112.132(b) addresses licensure and scope of practice requirements related to providing telehealth services. This subsection also specifies that an apprentice permit holder may provide telehealth services under their approved supervisor's license according to the specified requirements. A temporary training permit holder may provide telehealth services, as directed by their supervisor, according to the specified requirements, but only after the direct supervision training requirements are completed.

New §112.132(c) addresses competence and standard of practice. The subsection includes provisions regarding provider competence in the services being provided and the methodology and equipment being used; the standard of practice being the same for services provided via telehealth as services provided in-person; and the responsibility of a provider to determine whether a particular service or procedure is appropriate to be provided via telehealth.

New §112.132(d) addresses the use of facilitators to assist a provider in providing telehealth services. This subsection includes provisions regarding the facilitator's qualifications, training, and competence, as appropriate; the tasks that may be performed; the responsibilities of the provider; and the required documentation.

New §112.132(e) addresses technology and equipment. This subsection includes provisions regarding using telecommunications technology and other equipment that the provider is competent to use, and only providing telehealth services if the telecommunications technology and equipment are appropriate for the services to be provided; are properly calibrated, if appropriate, and in good working order; and are of sufficient quality to deliver equivalent service and quality to the client as if those services were provided in-person.

New §112.132(f) addresses client contacts and communications. This subsection provides that the initial contact between a provider and a client may be at the same physical location or through telehealth, as determined appropriate by the provider. This subsection requires consideration of certain factors in determining the appropriateness of providing services via telehealth and requires a notification of telehealth services be provided to a client.

New §112.132(g) addresses records and billing. This subsection includes provisions regarding maintenance of client records; documentation of telehealth services; and reimbursement of telehealth services.

New §112.132(h) addresses hearing instruments. This subsection includes a provision regarding digital adjustments of hearing instruments through telecommunications technology by a provider.

Subchapter P

The proposed rules repeal Subchapter P. Joint Rules for Fitting and Dispensing of Hearing Instruments by Telepractice.

The proposed rules repeal existing §112.150, Requirements Regarding the Fitting and Dispensing of Hearing Instruments by Telepractice. The statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice were repealed by SB 40, effective immediately. The definitions under §112.150(b) are included in §112.2 and new §112.130, as necessary. Most of the remaining provisions under §112.150(c)-(n) have been relocated to new §112.132 under new Subchapter N. Telehealth, and have been reorganized by subject matter with the new provisions.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state governments or local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be expanded access to services; an increase in the number of providers who may provide telehealth services; an increase in the number of clients who may receive services; a reduction in travel costs; a reduction in the number of office visits; and additional technologies to expand the availability of telehealth.

For those services which may be provided at the same level of quality via telehealth as in-person, a provider using telehealth could provide services to a larger number of clients living in rural areas who may not currently have access to services due to the distance to the nearest provider.

The proposed rules allow apprentice permit holders and temporary training permit holders who have completed their direct supervision training requirements to be providers of telehealth, under their supervisor's license, which will increase the number of providers and increase the number of clients who may be served through telehealth.

For those aspects of the fitting and dispensing of hearing instruments which may be performed through telehealth, there may be a decrease or elimination of travel costs for the client associated with an in-person office visit versus receiving that same service without the need to travel to a physical office location. Allowing providers to use telecommunications technology to remotely program hearing instruments will reduce the number of office visits needed by some clients for those services, as well as travel time and costs.

The inclusion of smartphones in the definition of telecommunications technology expands the availability of telehealth to those who may not have access to computers or Wi-Fi.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no significant economic costs to persons who are required to comply with the proposed rules. The rules do not impose additional fees upon licensees or permit holders, nor do they create requirements that would cause licensees or permit holders to expend funds for equipment, technology, staff, supplies, or infrastructure. A provider who wishes to expand services through the use of telehealth might need new or additional telecommunications technology, but this would be a discretionary cost and not required by the rule changes. Costs to establish telehealth capability is relatively inexpensive, with teleconferencing applications available for free or for prices as low as less than $15 per month, and computer cameras and other hardware are available also at low costs.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

5. The proposed rules do create a new regulation.

6. The proposed rules do expand, limit, or repeal an existing regulation.

7. The proposed rules do increase or decrease the number of individuals subject to the rules' applicability.

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

Existing rules for fitting and dispensing hearing instruments by telepractice are being proposed for repeal, and new rules for telehealth services are being proposed for adoption as part of the updating and clarification of the existing telehealth rules. Rule changes are proposed to implement SB 40, to update the current telehealth rules based on the four-year rule review, and to make the emergency rules permanent. The proposed rules expand the definitions for telehealth and telecommunications technology. The definition of telehealth provider is also expanded to include apprentice permit holders and temporary training permit holders who have completed their direct supervision training requirements, thereby increasing the number of individuals subject to the rule's applicability.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §112.2

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules are also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed rules.

§112.2.Definitions

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

(1) Act--Texas Occupations Code, Chapter 402, concerning the licensing of persons authorized to fit and dispense hearing instruments.

(2) Advisory board--The Hearing Instrument Fitters and Dispensers Advisory Board.

(3) Applicant--An individual who applies for a license or permit under the Act.

(4) Apprentice permit--A permit issued by the department to an individual who meets the qualifications established by Texas Occupations Code, §402.207 and this chapter, and which authorizes the permit holder to fit and dispense hearing instruments under appropriate supervision from an individual who holds a license to fit and dispense hearing instruments without supervision under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312.

(5) Certification, proof of--A certificate of calibration, compliance, conformance, or performance.

(6) Commission--The Texas Commission of Licensing and Regulation.

(7) Contact hour--A period of time equal to 55 minutes.

(8) Continuing education hour--A period of time equal to 50 minutes.

(9) Contract--See definition for "written contract for services."

(10) Continuing education--Education intended to maintain and improve the quality of professional services in the fitting and dispensing of hearing instruments, to keep licensees knowledgeable of current research, techniques, and practices, and provide other resources which will improve skills and competence in the fitting and dispensing of hearing instruments.

(11) Continuing education provider--A provider of a continuing education activity.

(12) Department--The Texas Department of Licensing and Regulation.

(13) Direct supervision--The physical presence with prompt evaluation, review and consultation of a supervisor any time a temporary training permit holder is engaged in the act of fitting and dispensing of hearing instruments.

(14) Executive director--The executive director of the department.

(15) Fitting and dispensing hearing instruments--The measurement of human hearing by the use of an audiometer or other means to make selections, adaptations, or sales of hearing instruments. The term includes the making of impressions for earmolds to be used as a part of the hearing instruments and any necessary post-fitting counseling for the purpose of fitting and dispensing hearing instruments.

(16) Hearing instrument--Any wearable instrument or device designed for, or represented as, aiding, improving, or correcting defective human hearing. The term includes the instrument's parts and any attachment, including an earmold, or accessory to the instrument. The term does not include a battery or cord.

(17) Indirect supervision--The daily evaluation, review, and prompt consultation of a supervisor any time a permit holder is engaged in the act of fitting and dispensing hearing instruments.

(18) License--A license issued by the department under the Act and this chapter to a person authorized to fit and dispense hearing instruments.

(19) Licensee--Any person licensed or permitted by the department under Texas Occupations Code Chapter 401 or 402.

(20) Manufacturer--The term includes a person who applies to be a continuing education provider who is employed by, compensated by, or represents an entity, business, or corporation engaged in any of the activities described in this paragraph. An entity, business, or corporation that:

(A) is engaged in manufacturing, producing, or assembling hearing instruments for wholesale to a licensee or other hearing instrument provider;

(B) is engaged in manufacturing, producing, or assembling hearing instruments for sale to the public;

(C) is a subsidiary of, or held by, an entity that is engaged in manufacturing, producing, or assembling hearing instruments as described in this definition;

(D) holds an entity, business, or corporation engaged in manufacturing, producing, or assembling hearing instruments as described in this definition; or

(E) serves as a buying group for an entity, business, or corporation engaged in manufacturing, producing, or assembling hearing instruments as described in this definition.

(21) Non-Manufacturer--Any person, entity, buyer group, or corporation that does not meet the definition of a manufacturer.

(22) Person--An individual, corporation, partnership, or other legal entity.

(23) Sale or sell--A transfer of title or of the right to use by lease, bailment, or other contract. The term does not include a sale at wholesale by a manufacturer to a person licensed under the Act or to a distributor for distribution and sale to a person licensed under the Act.

(24) Specific Product Information--Specific product information shall include, but not be limited to, brand name, model number, shell type, and circuit type.

(25) Supervisor--A supervisor is an individual who holds a valid license to fit and dispense hearing instruments under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312, and who meets the qualifications established by Texas Occupations Code, §402.255 and this chapter.

(26) Telehealth--See definition(s) in Subchapter N, Telehealth.

(27) [(26)] Temporary training permit--A permit issued by the department to an individual who meets the qualifications established by Texas Occupations Code, Chapter 402, Subchapter F, and this chapter, to authorize the permit holder to fit and dispense hearing instruments only under the direct or indirect supervision, as required and as appropriate, of an individual who holds a license to fit and dispense hearing instruments without supervision under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312.

(28) [(27)] Working days--Working days are Monday through Friday, 8:00 a.m. to 5:00 p.m.

(29) [(28)] Written contract for services--A written contract between the license holder and purchaser of a hearing instrument as set out in §112.140 (relating to Joint Rule Regarding the Sale of Hearing Instruments).

(30) [(29)] 30-day trial period--The period in which a person may cancel the purchase of a hearing instrument.

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 August 30, 2021.

TRD-202103409

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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


SUBCHAPTER N. TELEHEALTH

16 TAC §112.130, §112.132

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules are also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed rules.

§112.130.Definitions Relating to Telehealth.

Unless the context clearly indicates otherwise, the following words and terms, when used in this subchapter, shall have the following meanings.

(1) Client--A consumer or proposed consumer of services.

(2) Client site--The physical location of the client at the time the telehealth services are being provided.

(3) Facilitator--An individual at the client site who assists with the delivery of the telehealth services at the direction of the provider.

(4) In-person--The provider is physically present with the client while a client contact or service is performed.

(5) Provider--An individual who holds a current hearing instrument fitter and dispenser license under Texas Occupations Code, Chapter 402; an individual who holds a current apprentice permit under Texas Occupations Code, Chapter 402; or an individual who holds a current temporary training permit under Texas Occupations Code, Chapter 402 and has completed the direct supervision training requirements.

(6) Provider site--The physical location of the provider at the time the telehealth services are provided which is distant or remote from the client site.

(7) Telecommunications--Interactive communication at a distance by concurrent and synchronous two-way transmission, using telecommunications technology, of information, including, without limitation, sound, visual images, and/or computer data, between the client site and the provider site, and required to occur without a change in the form or content of the information, as sent and received, other than through encoding or encryption of the transmission itself for purposes of and to protect the transmission.

(8) Telecommunications technology--Computers, smart phones, and equipment, other than analog telephone, email or facsimile technology and equipment, used or capable of use for purposes of telecommunications. For purposes of this subchapter, the term includes, without limitation:

(A) compressed digital interactive video, audio, or data transmission;

(B) clinical data transmission using computer imaging by way of still-image capture and storage and forward;

(C) smart phones, or any audio-visual, real-time, or two-way interactive communication system; and

(D) other technology that facilitates the delivery of telehealth services.

(9) Telehealth--The use of telecommunications and information technologies for the exchange of information from one site to another for the provision of services to a client from a provider, including for assessments, interventions, or consultations regarding a client or for the fitting and dispensing of hearing instruments. Telehealth is also referred to as telepractice.

(10) Telehealth services--The assessment, intervention, and/or consultation including the fitting and dispensing of hearing instruments through telehealth to a client who is physically located at a site other than the site where the provider is located. Telehealth services is also referred to as telepractice services.

§112.132.Requirements for Providing Telehealth Services and Using Telehealth.

(a) Applicability.

(1) Except where noted, this subchapter applies to hearing instrument fitters and dispensers, apprentice permit holders, and temporary training permit holders, as authorized under this subchapter.

(2) Except to the extent it imposes additional or more stringent requirements, this subchapter does not affect the applicability of any other requirement or provision of law to which an individual is otherwise subject under this chapter or other law.

(b) Licensure and Scope of Practice.

(1) An individual shall not provide telehealth services to a client in the State of Texas, unless the individual holds a license or permit issued by the department and qualifies as a provider as that term is defined in this subchapter, or is otherwise legally authorized to do so.

(2) A provider may provide only those telehealth services that are within the course and scope of the provider's license or permit and competence, and delivered in accordance with the requirements of that license or permit and pursuant to the terms and conditions set forth in this chapter.

(3) A provider who is an apprentice permit holder may provide telehealth services under their approved supervisor's license according to the supervision requirements under 16 TAC §112.43.

(4) A provider who is a temporary training permit holder may provide telehealth services, as directed by their supervisor, according to the temporary training permit holder requirements under Texas Occupations Code, Chapter 402, Subchapter F and 16 TAC §112.53. A provider who is a temporary training permit holder may only provide telehealth services after the direct supervision training requirements are completed.

(c) Competence and Standard of Practice (Code of Ethics).

(1) A provider of telehealth services shall be competent in both the type of services provided and the methodology and equipment used to provide the service.

(2) A provider shall comply with the code of ethics and scope of practice requirements in this chapter when providing telehealth services.

(3) The scope, nature, and quality of the services provided via telehealth shall be the same as the services provided in-person.

(4) A provider shall determine whether a particular service or procedure is appropriate to be provided via telehealth. A provider shall not provide a service or procedure via telehealth if it is not appropriate or cannot be provided at the same standard of care as if it were provided in-person.

(5) As pertaining to liability and malpractice issues, a provider providing telehealth services shall be held to the same standards of practice as if the services were provided in person.

(d) Facilitators.

(1) Subject to the requirements and limitations of this subchapter, a provider may utilize a facilitator at the client site to assist the provider in providing telehealth services.

(2) A provider shall document whether a facilitator is used in providing telehealth services. If a facilitator is used, the provider shall document the tasks in which the facilitator provided assistance.

(3) Before allowing a facilitator to assist the provider in providing telehealth services, the provider shall ascertain and document the facilitator's qualifications, training, and competence, as appropriate and reasonable, in:

(A) each task the provider directs the facilitator to perform at the client site; and

(B) the methodology and equipment the facilitator is to use at the client site.

(4) The facilitator may perform at the client site only the following tasks:

(A) a task for which the facilitator holds and acts in accordance with any license, permit, authorization, or exemption required by law to perform the task; and

(B) those physical, administrative, and other tasks for which a provider determines a facilitator is competent to perform in connection with providing telehealth services, for which no form of license, permit, authorization, or exemption is required by law.

(5) A provider is responsible for the actions of the facilitator and shall monitor the client and oversee and direct the facilitator at all times during the telehealth session.

(6) A provider shall not provide telehealth services to a client if the presence of a facilitator is required for safe and effective service to the client and no qualified facilitator is available.

(e) Technology and Equipment.

(1) The provider shall use only telecommunications technology, as defined in this subchapter, to provide telehealth services. Modes of communication that do not utilize such telecommunications technology, including analog telephone, facsimile, and email, may be used only as adjuncts.

(2) A provider shall only utilize telecommunications technology and other equipment that the provider is competent to use as part of the provider's telehealth services.

(3) The provider shall not provide telehealth services unless the telecommunications technology and equipment located at the client site and at the provider site:

(A) are appropriate to the telehealth services to be provided;

(B) are properly calibrated, if appropriate, and in good working order; and

(C) are of sufficient quality to allow the provider to deliver equivalent service and quality to the client as if those services were provided in person at the same physical location.

(f) Client Contacts and Communications.

(1) The initial contact between a provider and client may be at the same physical location or through telehealth, as determined appropriate by the provider.

(2) A provider shall consider relevant factors including the client's behavioral, physical, and cognitive abilities in determining the appropriateness of providing services via telehealth.

(3) A provider shall be aware of the client's level of comfort with the technology being used as part of the telehealth services.

(4) A provider shall be sensitive to cultural and linguistic variables that affect the identification, assessment, treatment, and management of the clients

(5) Notification of telehealth services shall be provided to the client, the guardian, the caregiver, and the multi-disciplinary team, if appropriate. The notification shall include, but not be limited to: the right to refuse telehealth services, options for service delivery, and instructions on filing and resolving complaints.

(g) Records and Billing.

(1) A provider of telehealth services shall comply with all laws, rules, and regulations governing the maintenance of client records, including client confidentiality requirements.

(2) Documentation of telehealth services shall include documentation of the date and nature of services performed by the provider through telehealth and the assistive tasks of the facilitator, if used.

(3) A provider is allowed to provide telehealth services in accordance with this subchapter, but reimbursement of telehealth services is subject to the reimbursement policies of the entity being billed.

(h) Hearing Instruments. Hearing instruments may be adjusted digitally through the use of telecommunications technology by a provider who provides telehealth services under this subchapter.

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 August 30, 2021.

TRD-202103411

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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


SUBCHAPTER P. JOINT RULES FOR FITTING AND DISPENSING OF HEARING INSTRUMENTS BY TELEPRACTICE

16 TAC §112.150

STATUTORY AUTHORITY

The proposed repeal is proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed repeal is also proposed under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers.

The statutory provisions affected by the proposed repeal are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the proposed repeal.

§112.150.Requirements Regarding the Fitting and Dispensing of Hearing Instruments by Telepractice.

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 August 30, 2021.

TRD-202103412

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 10, 2021

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