Proposed Changes to General Provisions For Health-Related Programs

Chapter 100. General Provisions for Health-Related Programs
Proposal Filed: April 2, 2018 – Published in the Texas Register: April 13, 2018
Deadline for Public Comment: May 14, 2018

Underlined is new language.

[ Strikethrough text ] is deleted language.

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 100, §100.1; and proposes new rules §100.31 and §100.50, regarding General Provisions for Health-Related Programs.

JUSTIFICATION AND EXPLANATION OF THE RULES

Senate Bill 589, 85th Legislature, Regular Session (2017), established Texas Occupations Code, Chapter 506, which requires the Texas Commission of Licensing and Regulation (Commission) and the Department to license and regulate behavior analysts and assistant behavior analysts. In addition, the Texas Legislature passed House Bill 3078, which transferred the Texas State Board of Podiatric Medical Examiners to the Department. The proposed rules are necessary to add the Behavior Analyst and Podiatry to the health-related general provisions.

SECTION- BY- SECTION SUMMARY

The proposed amendments to §100.1 adds behavior analysts and podiatrists to the occupations applicable to this chapter.

The proposed new §100.31add rules specific to the rulemaking process for the podiatry program.

The proposed new §100.50 add rules specific to the procedure for soliciting input from podiatry advisory board members regarding continuing education requirements.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, 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. Francis has also determined that for each year of the first five years the new 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 amendment.

LOCAL EMPLOYMENT IMPACT STATEMENT

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

PUBLIC BENEFITS

Mr. Francis has also determined that for each year of the first five-years that the proposed rules are in effect, the public will benefit by having an effective regulatory program for both behavior analysts and the practice of podiatry. The proposed rules provide that scope of practice and standard of care rules for behavior analysts are proposed by the advisory board for this profession. The proposed rules also provide that scope of practice, standard of care, and ethics rules for podiatrists are proposed by the established advisory board for this profession. Additionally, the rules provide procedures for soliciting input from the podiatry advisory board on continuing education requirements. These proposed rules will benefit the public by ensuring the health, safety, and welfare of the public.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

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

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules.

Since the agency has determined that the proposed rules 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

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed 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 new 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. The rules require procedures to be created for the solicitation of and input from the advisory board for continuing education requirements.

(6) The proposed rules repeal the requirement to keep records at a central location at a Texas office, and repeal the requirement to make records available to a law enforcement agency upon request. The proposed rules also expand a regulation by requiring a training provider to designate a responsible person. The proposed rules do not limit or repeal existing rules. The proposed rules do expand the application of Chapter 100 rules to include behavioral analysts and podiatrists as required by statute.

(7) The proposed rules do not increase or decrease the number of individuals subject to the rule’s applicability.

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

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov . The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The amendment and new rule are proposed under Texas Occupations Code, Chapters 51, 202 (Podiatry); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 ( Hearing Instrument Fitters and Dispensers); 451 (Athletic Trainers); 506 (Behavior Analysts); 605 (Orthotists and Prosthetists); and 701 (Dietitians), which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51, 202 (Podiatry); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 451 (Athletic Trainers); 506 (Behavior Analysts); 605 (Orthotists and Prosthetists); and 701 (Dietitians). No other statutes, articles, or codes are affected by the proposal.

§100.1. Applicability.

(a) This chapter applies to the regulation of the following professions by the department:

(1) athletic trainers;

(2) behavior analysts;

(3) [ (2) ] dietitians;

(4) [ (3) ] hearing instrument fitters and dispensers;

(5) [ (4) ] midwives;

(6) [ (5) ] orthotists and prosthetists; [ and ]

(7) [ (6) ] speech-language pathologists and audiologists; and[ . ]

(8) podiatrists.

(b) The provisions of this chapter are in addition to all other provisions of law or commission rules that apply to the professions in subsection (a).

§100.31. Rules Regarding the Podiatry Program.

(a) This section is promulgated under Occupations Code, §51.2032 (b) and (c).

(b) The commission may not adopt a new rule relating to the scope of practice of, a health-related standard of care for, or the ethical practice of the profession of podiatry unless the rule has been proposed by the advisory board established for this profession.

(c) Under Section 51.2032 (b) and (c), Occupations Code, the advisory board may propose a rule described by subsection (b) according to the following procedure:

(1) The advisory board, by a majority vote of the members present and voting at a meeting at which a quorum is present, shall either:

(A) recommend that the rule be published in the Texas Register for public comment; or

(B) if the rule has been published and after considering the public comments, make a recommendation to the commission concerning adoption of the rule;

(2) The rule must be within the commission’s legal authority to adopt; and

(3) The department may make non-substantive, editorial changes to the rule as necessary.

(d) The commission shall either adopt the rule as proposed by the advisory board under subsection (c), with any non-substantive, editorial changes made by the department under subsection (c)(3), or return the rule to the Podiatric Medical Examiners Advisory Board for revision.

§100.50. Continuing Education Procedures for the Podiatry Program.

(a) The department will establish an advisory board work group to review and make recommendations regarding continuing education requirements.

(b) The department may obtain additional expertise from one or more of the following sources:

(1) a former member of the advisory board for the profession;

(2) a department staff expert; or

(3) an outside expert with relevant education, training, or experience;

(c) opinions or recommendations made under subsection (a) will be presented to the full advisory board for discussion.

REVIEW BY AGENCY COUNSEL

This agency hereby certifies that the proposed rules have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State, on April 2, 2018.


Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation