Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Dyslexia Therapy
16 Texas Administrative Code, amendments to Chapter 120, §§120.21, 120.22, 120.23, 120.25, and 120.90

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 120, §§120.21, 120.22, 120.23, 120.25, and 120.90, regarding the Dyslexia Therapy Program.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 120 implement Texas Occupations Code, Chapter 403, Licensed Dyslexia Practitioners and Licensed Dyslexia Therapists.

The proposed rules make changes recommended by Department staff to reduce the documentation that must be provided by license applicants who are certified by the Academic Language Therapy Association (ALTA); to clarify courses that qualify for continuing education credit; to allow telehealth services without an initial in-person meeting; and to correct cross-references. The proposed rules also make changes recommended by the Education and Examination Workgroup of the Dyslexia Therapy Advisory Committee to designate the examinations approved by the Department and to allow continuing education credit for the human trafficking prevention training course required for license renewal. The proposed rules are necessary to remove unnecessary burdens in obtaining and renewing a license; to designate the examinations required for licensure; to increase the availability of telehealth services; and to provide clarity.

The proposed rules were presented to and discussed by the Dyslexia Therapy Advisory Committee at its meeting on October 27, 2020. The Advisory Committee did not recommend any changes to the proposed rules. The Advisory Committee voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §120.21, Dyslexia Therapist Licensing Requirements, by allowing a person who holds current certification as an academic language therapist issued by ALTA to apply for a dyslexia therapist license without being required to provide a diploma or transcript proving that the person has earned a master’s degree from an accredited institution of higher education.

The adopted rules amend §120.22, Dyslexia Practitioner Licensing Requirements, by allowing a person who holds current certification as an academic language practitioner issued by ALTA to apply for a dyslexia practitioner license without being required to provide a diploma or transcript proving that the person has earned a bachelor's degree from an accredited institution of higher education.

The adopted rules amend §120.23(a) by designating the therapist level examination administered by ALTA as the examination required for licensure as a dyslexia therapist. The adopted rule language includes a change recommended by Department staff to remove the specific name of the examination currently administered by ALTA to allow for future changes to the name.

The adopted rules amend §120.23(b) by designating the practitioner level examination administered by ALTA as the examination required for licensure as a dyslexia practitioner. The adopted rule language includes a change recommended by Department staff to remove the specific name of the examination currently administered by ALTA to allow for future changes to the name.

The adopted rules amend §120.25, Continuing Education, by clarifying that courses and programs provided by education service centers are included in the acceptable categories for continuing education credit; correcting erroneous cross-references; and allowing the human trafficking prevention training course required for license renewal to be accepted for up to one hour of continuing education credit.

The adopted rules amend §120.90, Professional Standards and Basis for Disciplinary Action, by removing the prohibition against providing services solely by written, telephone, or electronic/video correspondence or communication; and renumbering the remaining provisions accordingly. This change will allow a license holder to provide telehealth services without the requirement for an initial in-person meeting with a client.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the December 4, 2020, issue of the Texas Register (45 TexReg 8687). The deadline for public comments was January 4, 2021. The Department did not receive any comments from interested parties on the proposed rules during the 30-day public comment period.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Dyslexia Therapy Advisory Committee met on February 24, 2021, to discuss the proposed rules. The Advisory Committee recommended that the Commission adopt the proposed rules as published in the Texas Register with changes to §120.23 made in response to Department recommendations, as explained in the Section-by-Section Summary. At its meeting on May 6, 2021, the Commission adopted the proposed rules with changes as recommended by the Advisory Committee.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 403, which authorize the Texas Commission of Licensing and Regulation, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 403. No other statutes, articles, or codes are affected by the adopted rules.

§120.21. Dyslexia Therapist Licensing Requirements.

(a) A person who holds current certification as an academic language therapist issued by the Academic Language Therapy Association or its equivalent as approved by the department, may be licensed as a dyslexia therapist if the person has earned at least a master's degree from an accredited public or private institution of higher education.

(b) A person who qualifies for licensure under subsection (a) is not required to provide documentation to the department that the person meets the requirements of Occupations Code §403.105, Eligibility for Licensed Dyslexia Therapist License.

(c) A licensed dyslexia therapist may practice in a school, learning center, clinic, or private practice setting.

§120.22. Dyslexia Practitioner Licensing Requirements.

(a) A person who holds current certification as an academic language practitioner issued by the Academic Language Therapy Association or its equivalent, as approved by the department, may be licensed as a dyslexia practitioner if the person has earned a bachelor's degree from an accredited public or private institution of higher education.

(b) A person who qualifies for licensure under subsection (a) is not required to provide documentation to the department that the person meets the requirements of Occupations Code §403.104, Eligibility for Licensed Dyslexia Practitioner License.

(c) A licensed dyslexia practitioner may practice only in an educational setting, including a school, learning center, or clinic.

§120.23. Examination.

(a) The examination designated and approved by the department for licensure as a dyslexia therapist is the therapist level examination administered by the Academic Language Therapy Association.

(b) The examination designated and approved by the department for licensure as a dyslexia practitioner is the practitioner level examination administered by the Academic Language Therapy Association.

(c) The applicable licensure examination requirement is waived for a person who holds current certification as an academic language therapist or academic language practitioner issued by the Academic Language Therapy Association, or its equivalent, as approved by the department.

§120.25. Continuing Education.

(a) A license holder must complete 20 clock-hours of continuing education during each two-year licensure period.

(b) Continuing education credit taken by a license holder for renewal shall be acceptable if the experience falls in one or more of the following categories and meets the requirements of subsection (c):

(1) academic courses at a regionally accredited college or university;

(2) in-service educational programs, training programs, institutes, seminars, workshops and conferences, including courses and programs provided by education service centers;

(3) instructing or presenting education programs or activities at an academic course, in-service educational programs, training programs, institutes, seminars, workshops and conferences not to exceed five clock-hours each continuing education period;

(4) publishing a book or an article in a peer review journal not to exceed five clock-hours each continuing education period; or

(5) successful completion of a self-study program, not to exceed ten clock-hours each continuing education period.

(c) Continuing education credit taken by a license holder, shall be in one or more of the following content areas:

(1) basic language and/or learning disorders;

(2) applied multisensory practice and methodology;

(3) curricula in academic language therapy;

(4) related research in medicine, psychology, education, or linguistics; or

(5) professional practice, including relevant laws, rules, and ethics of practice.

(d) Continuing education experience shall be credited as follows:

(1) Completion of course work at or through an accredited college or university, shall be credited for each semester hour on the basis of ten clock-hours of credit for each semester hour successfully completed for credit or audit as evidenced by a certificate of successful completion or official transcript.

(2) Parts of programs that meet the criteria of subsection (b)(2) or (3) shall be credited on a one-for-one basis with one clock-hour of credit for each clock-hour spent in the continuing education experience.

(3) A clock-hour shall be 50 minutes of attendance and participation in an acceptable continuing education experience.

(4) Continuing education programs, as described in subsection (b)(2) and (3), must be offered or approved by the Academic Language Therapy Association or its equivalent, as approved by the department.

(5) Successful completion of continuing education experience, as described in subsection (b)(2) and (3), is evidenced by a certificate of completion or attendance issued by the approved sponsoring organization of the course.

(6) Successful completion of continuing education experience, as described in subsection (b)(4), is evidenced by submission of a copy of the publication.

(7) Successful completion of continuing education experience, described in subsection (b)(5), is evidenced by a certificate of completion presented by the sponsoring organization of the self-study program.

(e) The department shall employ an audit system for continuing education reporting. The license holder shall be responsible for maintaining a record of his or her continuing education experiences. The certificates, diplomas, or other documentation verifying earning of continuing education hours, are not to be forwarded to the department at the time of renewal unless the license holder has been selected for audit.

(f) The audit process shall be as follows.

(1) The department shall select for audit, a random sample of license holders for each renewal month. License holders will be notified of the continuing education audit when they receive their renewal documentation.

(2) All license holders selected for audit shall submit copies of certificates, transcripts or other documentation satisfactory to the department, verifying the license holder's attendance, participation and completion of the continuing education. All documentation must be provided at the time of renewal.

(3) Failure to timely furnish this information or providing false information during the audit process or the renewal process are grounds for disciplinary action against the license holder.

(4) A license holder who is selected for continuing education audit may renew through the online renewal process. However, the license will not be considered renewed until the required continuing education documents are received, accepted and approved by the department.

(g) Licenses will not be renewed until continuing education requirements have been met.

(h) A person who fails to complete continuing education requirements for renewal may not renew the license. The person may obtain a new license by complying with the current requirements and procedures for obtaining a license.

(i) The department may not grant continuing education credit to any license holder for:

(1) education incidental to the regular professional activities of a license holder, such as learning occurring from experience or research;

(2) professional organization activity, such as serving on committees or councils or as an officer;

(3) any continuing education activity completed before or after the period of time described in subsection (a); or

(4) performance of duties that are routine job duties or requirements.

(j) The human trafficking prevention training course required for license renewal under §120.26(b) may be accepted for up to one hour of continuing education credit.

§120.90. Professional Standards and Basis for Disciplinary Action.

(a) This section is authorized under Texas Occupations Code, Chapters 51 and 403.

(1) If a person violates any provision of Texas Occupations Code, Chapters 51, 403, or any other applicable provision, this chapter, or a rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of the Texas Occupations Code and the associated rules.

(2) The enforcement authority granted under Texas Occupations Code, Chapters 51 and 403, and any associated rules may be used to enforce the Texas Occupations Code and this chapter.

(b) A license holder shall comply with the following requirements in the provision of professional services. All license holders shall:

(1) only provide professional services that are within the scope of the license holder's competence, considering level of education, training, and experience.

(2) ensure a safe therapy or teaching environment for clients.

(3) not jeopardize a client's safety or well-being by abusive or inattentive behavior.

(4) maintain objectivity in all matters concerning the welfare of the client.

(5) terminate a professional relationship when it is reasonably clear that the client is not benefitting from the services being provided or when it is reasonably clear that the client no longer needs the services.

(6) seek to identify competent, dependable referral sources for clients and shall refer when requested or appropriate.

(7) provide accurate information to clients and the public about the nature and management of dyslexia and about the services rendered.

(8) be knowledgeable of all available diagnostic data and other relevant information regarding each client.

(9) not guarantee, directly or by implication, the results of any therapeutic or teaching services, except that a reasonable statement of prognosis may be made. A license holder shall not mislead clients to expect results that cannot be predicted from reliable evidence.

(10) accurately represent and describe any product created or recommended by the license holder.

(11) not require the exclusive use or purchase by a client of any product created or produced by the license holder.

(12) not use his or her professional relationship with a client to promote any product for personal gain or profit, unless the license holder has disclosed to the client the nature of the license holder's personal gain or profit.

(13) not misrepresent his or her education, training, credentials, or competence.

(14) fully inform clients of the nature and possible outcomes of services rendered.

(15) obtain written consent from a client or a minor client's parent or legal guardian in order to use the client's data or information for research or teaching activities.

(16) not falsify records.

(17) bill a client or third party only for the services actually rendered in the manner agreed to by the license holder and the client or the minor client's parent or legal guardian.

(18) not provide professional services to a client who is receiving dyslexia services from another license holder, except with the prior knowledge and consent of the other license holder.

(19) not reveal, without authorization, any professional or personal information about a client unless required by law or compelled by a court to do so, or unless doing so is necessary to protect the welfare of the client or of the community. If a license holder reveals professional or personal information about a client without authorization, the information disclosed, the person or entity to whom it was disclosed, and the justification for disclosure shall be documented by the license holder in the client's record.

(20) provide, in plain language, a written explanation of the charges for professional services previously made on a bill or statement, upon the written request of a client or the minor client's parent or legal guardian.

(21) not engage in the medical diagnosis or treatment of clients.

(22) not engage in sexual contact, including intercourse or kissing, sexual exploitation, or therapeutic deception, with a client. Sexual contact and sexual intercourse mean the activities and behaviors described in Penal Code, §21.01. Sexual exploitation means a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. Therapeutic deception means a representation by a license holder that sexual contact with, or sexual exploitation by, the license holder is consistent with, or part of, the professional services being provided to the client.

(23) not use alcohol or drugs, not legally prescribed for the license holder, when the use adversely affects or could adversely affect the provision of professional services.

(24) not offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for securing or soliciting clients or patronage.

(25) comply with all provisions of the Act and this chapter, as well as any other state or federal law or rule that relates to the provision of professional services by, or the regulation of the license holder.

(26) not obtain a license by means of fraud, misrepresentation, or concealment of a material fact.

(27) not sell, barter, or offer to sell or barter a license.

(28) inform the department of any violations of this chapter or the Act.

(29) comply with any order issued by the department that relates to the license holder.

(30) not interfere with a department investigation or disciplinary proceeding by misrepresentation or omission of facts to the department or by the use of threats or harassment against any person.

(31) cooperate with the department by promptly furnishing required documents and by promptly responding to a request for information from the department.

(32) provide professional services without discrimination based on race, color, national origin, religion, gender, age, or disability.

(c) A license holder in private practice shall:

(1) provide a client or a minor client's parent or legal guardian with a written agreement for services prior to the commencement of professional services.

(A) The agreement shall contain, at a minimum, a description of the services to be provided, goals, techniques, materials, the cost for services, payment arrangements and policies, hours, cancellation and refund policies, contact information for both parties, and the dated signatures of both parties.

(B) Any subsequent modifications to the agreement shall be signed and dated by both parties.

(2) maintain legible and accurate records of professional services rendered. A license holder practicing in an educational setting, including a school, learning center, or clinic, shall comply with the recordkeeping requirements of the educational setting.

(3) maintain records for a minimum of five years following the termination of services. A license holder practicing in an educational setting, including a school, learning center, or clinic, shall comply with the records retention requirements of the educational setting.

(4) not delegate any service requiring professional competence to a person not competent to provide the service. A license holder in private practice is responsible for the services provided by unlicensed persons employed or contracted by the license holder.

(5) notify each client or the minor client's parent or legal guardian of the department's name, website, email address, mailing address, and telephone number for the purpose of directing complaints to the department by providing notification on a sign prominently placed in the primary place of business or on a written document, such as an agreement or contract for services or an informational brochure provided by a license holder to a client or the minor client's parent or legal guardian.

(6) display the license in the primary location of practice, but shall not display a license that has been photographically or otherwise reproduced.

(d) Information used by a license holder in any advertisement or announcement shall not contain information that is false, inaccurate, misleading, incomplete, out of context, deceptive or not readily verifiable. Advertising includes, but is not limited to, any announcement of services, letterhead, business cards, commercial products, and billing statements. False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that:

(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2) makes a representation likely to create an unjustified expectation about the results of a professional service;

(3) compares a professional's services with another professional's services unless the comparison can be factually substantiated;

(4) causes confusion or misunderstanding as to the credentials, education, or licensing of a professional;

(5) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of client; or

(6) represents in the use of a professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional, unless the license holder is licensed or otherwise authorized to use the title or professional identification.

(e) Records are the responsibility and property of the entity or individual who owns the practice or the practice setting.

REVIEW BY AGENCY COUNSEL

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

Filed with the Office of the Secretary of State, on May 12, 2021.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation