Justification for Emergency Rule Adoption

JUSTIFICATION FOR EMERGENCY RULE ADOPTION

Hearing Instrument Fitters and Dispensers
16 Texas Administrative Code, Chapter 112
Emergency amendments to an existing rule at Subchapter P, §112.150

The Texas Commission of Licensing and Regulation (Commission) adopts the emergency amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 112, Subchapter P, §112.150, regarding the Hearing Instrument Fitters and Dispensers program. The effective date for these emergency amendments (emergency rule) is September 1, 2021.

EXPLANATION AND JUSTIFICATION FOR THE EMERGENCY RULE

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

Background and Findings

On March 13, 2020, the Governor of Texas issued a disaster proclamation under Texas Government Code §418.014 certifying that COVID-19 poses an imminent threat of disaster for all counties in the State of Texas, and this proclamation has been renewed continuously since that date.

On March 22, 2020, the Texas Department of Licensing and Regulation (Department) submitted a request to waive certain rules under 16 TAC Chapter 112 in order to remove restrictions and to expand the provision of services through telehealth. These waivers allowed for the use of additional technologies to provide telehealth services; allowed for the expanded use of facilitators; and removed the in-person initial client contact requirement.

On April 8, 2020, the Governor granted the telehealth waiver request, and the Department implemented the waivers on April 9, 2020. The providers under 16 TAC Chapter 112 have been providing services to clients in accordance with those waivers since April 2020.

On June 3, 2021, the Governor signed S.B. 40, 87th Legislature, Regular Session, 2021, which became effective immediately. This bill amended Texas Occupations Code, Chapter 51, to add new telehealth provisions and rulemaking authority, and amended Texas Occupations Code, Chapters 401 and 402, to repeal existing provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice.

On July 20, 2021, the Department requested that the telehealth waivers granted for 16 TAC Chapter 112, in part, be rescinded effective September 1, 2021. The Governor granted the waiver rescission request on July 26, 2021, with termination effective at 12:01 a.m. on September 1, 2021.

The Department will propose telehealth rules for adoption by the Texas Commission of Licensing and Regulation on a permanent basis, pursuant to Texas Occupations Code, Chapters 51 and 402, as amended by S.B. 40, 87th Legislature, Regular Session, 2021. The new permanent rules are anticipated to be adopted by early 2022. To prevent a gap in services before that date, the Commission has 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.

It is found that without emergency rules to fill the gap, there will be a disruption in the services that have been provided to clients since the waivers were granted, resulting in imminent peril to the public health, safety, and welfare.

It is found that this emergency rulemaking is necessary 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. This emergency rulemaking also reflects the change in the statutory authority regarding telehealth. This emergency rulemaking is necessary to protect the public health, safety, and welfare.

Continuing Telehealth Services through Emergency Rules

The emergency rules reflect the waivers that were granted by the Governor during the COVID-19 pandemic until permanent rules are adopted. The emergency rules make the following changes:

S.B. 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.

SECTION BY SECTION SUMMARY

The emergency rule amends the title of Subchapter P to reflect the change in the statutory authority and the change in terminology.

The emergency rule amends the title of §112.150 to reflect the change in the statutory authority and the change in terminology.

The emergency rule amends subsections (g) and (h)(1)

The emergency rule amends subsection (i) to replace the reference to “telepractice” with the term “telehealth.”

The emergency rule amends subsection (k) to replace the reference to “the provider’s telepractice” with “telehealth.”

The emergency rule re-letters current subsection (n) as subsection (o).

RECOMMENDATIONS AND COMMISSION ACTION

The Hearing Instrument Fitters and Dispensers Advisory Board met August 6, 2021, and recommended that the Commission adopt the emergency rule. At its meeting on August 10, 2021, the Commission adopted the emergency rule as recommended by the Advisory Board and the Department.

FUTURE RULEMAKING

Under Texas Government Code §2001.034, the emergency rule may be effective for 120 days, and may be renewed once for an additional 60 days. The Department may propose this or a similar rule under the standard rulemaking process and will consider any additional action necessary in the event unforeseen issues arise with the adopted emergency rule.

STATUTORY AUTHORITY

The emergency rule is adopted with abbreviated or no notice and with an expedited effective date under Texas Government Code §2001.034(a) and §2001.036(a)(2).

The emergency rule is adopted under Texas Occupations Code, Chapters 51 and 402, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement those chapters. The emergency rule is also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40, and Texas Occupations Code, Chapter 111, Telemedicine and Telehealth.

The statutory provisions affected by the emergency 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 emergency rules.

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

  • 112.150. Requirements Regarding the Fitting and Dispensing of Hearing Instruments by Telehealth [Telepractice].

(a) [Pursuant to Texas Occupations Code §401.2022 and §402.1023, the commission, with the assistance of the Speech-Language Pathologists and Audiologists Advisory Board and the Hearing Instrument Fitters and Dispensers Advisory Board, shall adopt rules to establish requirements for the fitting and dispensing of hearing instruments through the use of telepractice.] This subchapter contains rules that set forth the requirements for the fitting and dispensing of hearing instruments through the use of telehealth [telepractice].

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

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

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

(3) Client site--The site at which the client is physically located.

(4) Facilitator--The individual at the client site who assists with the delivery of telehealth services.

(5) 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.

(6) Provider--An individual who holds a current, renewable, unrestricted license under Texas Occupations Code, Chapter 402, that authorizes the individual to fit and dispense hearing instruments without supervision; an individual who holds a current, renewable, unrestricted license under Texas Occupations Code, §401.302; or an individual who holds an audiology intern license under Texas Occupations Code, §401.311.

(7) Provider site--The physical location of the provider of telehealth services which is distant or remote from the client site.

(8) 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.

(9) 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 services.

(10) Telehealth services--The fitting and dispensing of hearing instruments through telehealth [telepractice] to a client who is physically located at a site other than the site where the provider is located.

(11) Telehealth [Telepractice]--The use of telecommunications technology for the fitting and dispensing of hearing instruments.

(c) Unless otherwise legally authorized to do so, an individual shall not render telehealth services from the State of Texas or to a client in the state of Texas, unless the individual qualifies as a provider as that term is defined in this section and renders only those telehealth services that are within the course and scope of the provider's licensure and competence, and delivered in accordance with the requirements of that licensure and pursuant to the terms and conditions set forth in this subchapter.

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

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

(f) The provider shall be present at the provider site and shall be visible and audible to, and able to see and hear the client and the facilitator via telecommunications technology in synchronous, real-time interactions, even when receiving or sending data and other telecommunication transmissions in carrying out the telehealth services. The 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.

(g) The provider of telehealth services, prior to allowing a facilitator to assist the provider in rendering telehealth services, shall verify and document the facilitator's qualifications, training, and competence, if applicable, in each task the provider directs the facilitator to perform at the client site, and in the methodology and equipment the facilitator is to use at the client site.

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

(1) those physical, administrative, and other tasks [for which the provider has trained the facilitator] in connection with the fitting or dispensing of hearing instruments for which no form of license, permit, authorization or exemption is required by law; and

(2) those tasks for which the individual who is acting as a facilitator otherwise holds and acts in accordance with any license, permit, or other form of authorization or exemption required by law to perform the tasks.

(i) A provider shall not render telehealth services to a client in those situations in which the presence of a facilitator is required for safe and effective service to the client and no qualified facilitator is available to the client during the telehealth [telepractice] session.

(j) The scope, nature, and quality of the telehealth services provided, including the assistance provided by the facilitator, shall be commensurate with the services the provider renders in person at the same physical location as the client.

(k) The provider shall not render telehealth services unless the telecommunications technology and equipment located at the client site and at the provider site are appropriate to the telehealth services to be rendered; are properly calibrated and in good working order; and are of sufficient quality to allow the provider to deliver equivalent fitting and dispensing service and quality to the client as if those services were provided in person at the same physical location. The provider shall only utilize telecommunications technology and other equipment for telehealth [the provider’s telepractice] which the provider is competent to use.

(l) The initial contact between a provider and client may be at the same physical location or through telehealth, as determined appropriate by the provider. [A client’s initial professional contact with a provider shall be in person at the same physical location.]

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

(n)[(m)] Providers and facilitators involved in the provider’s delivery of telehealth services shall comply with all laws, rules, and regulations governing the maintenance of client records, including client confidentiality requirements. Documentation of telehealth services shall include documentation of the date and nature of services performed by the provider by telehealth [telepractice] and of the assistive tasks of the facilitator.

(o)[(n)] Except to the extent it imposes additional or more stringent requirements, this section 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.

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency’s legal authority.

Filed with the Office of the Secretary of State, on August 16, 2021.

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation