Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Orthotists and Prosthetists
16 Texas Administrative Code, amendments to Chapter 114, §114.40

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 114, §114.40, regarding the Orthotists and Prosthetists Program, without changes to the proposed text as published in the February 21, 2020, issue of the Texas Register (45 TexReg 1142).

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The adopted rule implements the requirements of House Bill (HB) 2059 of the 86th Texas Legislature, Regular Session (2019), and Texas Occupations Code Chapter 116, requiring human trafficking prevention training for health care practitioners prior to the renewal of a license. The adopted rule also amends the existing rule section’s definition of “licensee” to reflect the definition used throughout Chapter 114 of the Department’s rules for purposes of clarity and consistency.

SECTION-BY-SECTION SUMMARY

The adopted rule amends §114.40, Renewal, by clarifying the rule section’s definition of “licensee” in subsection (a) to reflect the definition used throughout Chapter 114. Additionally, the adopted rule amends the section to include new subsection (c)(7), a requirement for human trafficking prevention training prior to license renewal as required by HB 2059 and Texas Occupations Code §116.003.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rule to persons internal and external to the agency. The proposed rule was published in the February 21, 2020, issue of the Texas Register (45 TexReg 1142). The deadline for public comments was March 23, 2020. The Department received comments from three interested parties on the proposed rule during the 30-day public comment period. The public comments are summarized below.

Comments: All three public comments opposed the requirement for human trafficking prevention training and expressed the opinion that such training was not necessary for orthotists and prosthetists.

Department Response: The Department disagrees with these comments. The proposed rule implements HB 2059, 86th Legislature Regular Session (2019). HB 2059 requires health care practitioners, including orthotists and prosthetists, to complete human trafficking training as a condition of license renewal. No change has been made to the proposed rule in response to these comments.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Orthotists and Prosthetists Advisory Board met on January 13, 2020, to discuss the proposed rule and recommended publishing the proposed rule without changes in the Texas Register. The Board did not hold a second meeting to discuss the public comments, due to circumstances caused by the COVID-19 situation. At its meeting on June 30, 2020, the Commission adopted the proposed rule as published in the Texas Register.

STATUTORY AUTHORITY

The adopted rule is adopted under Texas Occupations Code, Chapters 51 and 605, 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 adopted rule are those set forth in Texas Occupations Code, Chapters 51, 116, and 605. No other statutes, articles, or codes are affected by the adopted rule.

§114.40 Renewal.

(a) Application. Unless the text clearly says otherwise, use of the term licensee shall have the meaning assigned in §114.10.

(1) After the initial license period, a licensee must renew the license every two years. This requirement does not apply to renewal of a temporary license or a student registration.

(2) Each licensee is responsible for renewing the license before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification of expiration from the department before the expiration date of the license shall not excuse failure to apply for renewal or late renewal.

(3) The department shall not renew the license of a licensee who is in violation of the Act or department rules at the time of application for renewal.

(b) A student registration may be renewed once for an additional two years. A student registration may not be renewed more than once in each area: prosthetics, orthotics, or both.

(c) License renewal requirements. To renew a license, a licensee must:

(1) submit a completed renewal application on a department-approved form;

(2) submit proof of successfully completing the Texas Jurisprudence Exam, if applicable;

(3) successfully pass a criminal history background check;

(4) complete applicable continuing education requirements under §114.50;

(5) comply with the continuing education audit process described under §114.50, as applicable;

(6) submit the renewal fee required under §114.80; and

(7) for each license renewal on or after September 1, 2020, the licensee must complete the human trafficking prevention training required under Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(d) Renewal for a retired practitioner performing voluntary charity care.

(1) A retired practitioner performing voluntary charity care is a person who is:

(A) at least 55 years old;

(B) is not employed for compensation in the practice of orthotics or prosthetics; and

(C) has notified the department in writing of the intention to retire and provide only voluntary orthotic or prosthetic charity care.

(2) A retired practitioner who is only providing voluntary charity care may renew the license by submitting a renewal form; the required fee; and documentation of required continuing education hours.

(3) A retired practitioner may not change his or her retired status until the next renewal period. To change status upon renewal, the retiree must notify the department in writing, submit a renewal application, the renewal fee for a prosthetist or orthotist license, and documentation of the required continuing education hours.

(e) Renewal of facility accreditation.

(1) An accreditation is valid for two years.

(2) The department shall not renew the accreditation of a facility that is violating or has violated the Act or this chapter until the facility has corrected the violation(s) to the satisfaction of the department.

(3) Each facility is responsible for renewing the accreditation before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification of expiration from the department before the expiration date of the accreditation shall not excuse failure to apply for renewal or late renewal.

(4) The department shall renew an accreditation for a facility that has met the requirements for renewal. The certificate shall be displayed in a prominent location in the facility where it is available for inspection by the public.

(5) After an accreditation is expired and until the facility has renewed the accreditation, the facility may not provide orthotic or prosthetic patient care.

(f) Expiration of license or accreditation.

(1) A person may not practice with an expired license.

(2) A person whose license has expired may not use the title or represent or imply that he or she has the title of "licensed orthotist," "licensed prosthetist," "licensed prosthetist/orthotist," "licensed orthotist assistant," "licensed prosthetist assistant," "licensed prosthetist/orthotist assistant," or use the letters "LO," "LP," "LPO," "LOA," "LPA," or "LPOA," and may not use facsimiles of those titles.

(3) A facility that fails to renew its accreditation shall not represent or imply that the facility is accredited by the department.

(4) A person whose license has expired may late renew the license in accordance with §60.31 of this title (relating to License Renewal Applications) and §60.83 of this title (relating to Late Renewal Fees). Facilities whose accreditation has expired may late renew the accreditation in accordance with §60.31 and §60.83.

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 July 10, 2020.


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation