Hearing Instrument Fitters and Dispensers

Chapter 112. Hearing Instrument Fitters and Dispensers

Proposal Filed: August 30, 2021 – Published in the Texas Register: September 10, 2021

Deadline for Public Comment: October 11, 2021

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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Session (2021) added new telehealth provisions and rulemaking authority to Texas Occupations Code, Chapter 51, and repealed the provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice in Texas Occupations Code, Chapters 401 and 402.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.

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.

SUBCHAPTER A. GENERAL PROVISIONS

§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.

SUBCHAPTER N. TELEHEALTH

§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 p rovider 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.

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.

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

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

REVIEW BY AGENCY COUNSEL

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.


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation