Proposed Administrative Rules

Chapter 114. Orthotics and Prosthetics
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 existing rules at 16 Texas Administrative Code (TAC), Chapter 114, §§114.10, 114.20, 114.23, 114.24, 114.25, 114.26, 114.27, 114.28, 114.29, 114.30, 114.40, 114.50, 114.66, 114.67, 114.68, 114.69, 114.80, 114.90; and proposes new §114.75, regarding the Orthotics and Prosthetics program.

JUSTIFICATION AND EXPLANATION OF THE RULES

House Bill 4007 (H.B. 4007) 85th Legislature, Regular Session (2017), modified Texas Occupations Code, Chapter 605, which provides statutory authority for the Orthotics and Prosthetics program. The proposed rules implement statutory changes to remove the Texas residency requirement to obtain a license; replace the method for electing the presiding officer of the advisory board with the obligation for the Texas Commission of Licensing and Regulation to designate the presiding officer; remove the civil penalty; and update the requirements to obtain a temporary license. Amendments recommended by the Orthotists and Prosthetists Advisory Board (Advisory Board) and Department staff add provisions addressing scope and conditions of practice; update requirements for accredited facilities, students, and residency programs; and include edits for clarity, consistency, and accuracy. The proposed rules are necessary to implement H. B. 4007 and the recommendations by the Advisory Board.

SECTION-BY-SECTION SUMMARY

The proposed amendments to §114.10 remove the “Texas resident” definition and renumber the section accordingly.

The proposed amendments to §114.20 update statutory citations.  

The proposed amendments to §114.23 correct a statutory citation and implement the statutory change removing the Texas residency requirement.   

The proposed amendment to §114.24 corrects a statutory reference.

The proposed amendments to §114.25 implement the statutory change to the requirements for a temporary license and renumber the section accordingly.

The proposed amendments to §114.26 update and expand the student registration.

The proposed amendments to §114.27 update terminology and increase the time period for a supervisor to sign off on assistants’ clinical notes.

The proposed amendment to §114.28 makes applicable to all technicians the prohibition against providing patient care.

The proposed amendments to §114.29 update and clarify the requirements and conditions for accreditation of facilities, and renumber the section accordingly.                

The proposed amendments to §114.30 expand student registration; impose obligations on residency programs to ensure that residents hold student registrations; update a statutory reference; and renumber the section accordingly.                          

The proposed amendments to §114.40 remove the Department’s obligation to send renewal notices and application forms; update the requirement for display of the accreditation certificate; correct terminology; and renumber the section accordingly.

The proposed amendments to §114.50 update terminology.

The proposed amendment to §114.66 updates the section heading only.

The proposed amendment to §114.67 updates the section heading only.

The proposed amendments to §114.68 implement the statutory change to the method of designating the presiding officer of the advisory board, and update the section heading.

The proposed amendment to §114.69 updates the section heading only.

The proposed new §114.75 details scope and conditions of practice for consultations, physician orders, and practice setting.The proposed amendments to §114.80 update language and correct a rule citation.

The proposed amendments to §114.90 add an enforcement provision for failing to report violations to the Department; remove the civil penalty; update and correct language, terminology, and citations; and renumber the section accordingly.

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 foreseeable implications relating to costs or revenues to state or local government as a result of enforcing or administering the amendments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis 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. Francis has also determined that for each year of the first five-year period, the proposed rules are in effect, the public will benefit from clarification of existing requirements in the rules, the removal of outdated requirements, the addition of specific obligations and authorizations for scope and conditions of practice, the expansion of the scope of activity under the student registration, and the alignment of the rules with national standards and the modern practice of orthotics and prosthetics. These changes contribute to an effective and efficient regulatory program, which protects the health, safety, and welfare of the citizens of Texas.       

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

Because 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

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 proposed 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 rule will be in effect, the agency has determined the following:  

(1) The proposed rule does not create or eliminate a government program.
(2) Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.
(3) Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency. 
(4) The proposed rule does not require an increase or decrease in fees paid to the agency.
(5) The proposed rule does not create a new regulation. 
(6) The proposed rule repeals the requirement for the Department to send renewal notices and for facilities to provide a phone for patients. The proposed rule expands the student registration to include a limited period of work after completion of a residency; imposes additional requirements on residency programs to ensure that students are registered; and expands the allowed practice setting to include offsite practice.
(7) The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability. 
(8) The proposed rule does not positively or adversely affect this state's economy. 

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Ana Villarreal, 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.

The proposed rules are proposed 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 proposal are those set forth in Texas Occupations Code, Chapters 51 and 605. No other statutes, articles, or codes are affected by the proposal.

§114.10. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Words and terms defined in the Orthotics and Prosthetics Act shall have the same meaning in this chapter:

(1) - (37) (No change.)

[(38) Texas resident--A person whose home or fixed place of habitation to which one returns after a temporary absence is in Texas.]

(38) [(39)] Voluntary charity care--The practice of a licensed practitioner without compensation or expectation of compensation.

§114.20. Applications.

(a) - (g) (No change.)

(h) Disapproved applications. The department may disapprove an application if the applicant:

(1)  - (7) (No change.)

(8) has failed to report a known violation of the Act or this chapter to the department;

(9) - (10) (No change.)

(11) has committed a prohibited act under the Act, §§605.351 - 605.352 [605.353]; or

(12) fails to meet department standards for the license for which the applicant is applying developed in accordance with Chapter 53, Occupations Code, relating to criminal history.

§114.23. Requirements for Uniquely Qualified Person Licensure as a Prosthetist, Orthotist, or Prosthetist/Orthotist.

(a) Purpose. The purpose of this section is to describe the unique qualifications a person must possess to qualify for licensure as a prosthetist, orthotist or prosthetist/orthotist under the Orthotics and Prosthetics Act (Act), §605.254[(a)(2)].

(b) Unique qualifications. A uniquely qualified person means a person [resident of the State of Texas] who, through education, training and experience, is qualified to perform prosthetic or orthotic care.

(c) - (f) (No change.)

§114.24. Requirements for Licensure by Examination as a Prosthetist, Orthotist, or Prosthetist/Orthotist.

(a) - (b) (No change.)

(c) Post-graduate requirements for the orthotist, prosthetist, or prosthetist/orthotist license.

(1) (No change.)

(2) If any of the clinical requirements are completed in Texas, the supervising orthotist(s), prosthetist(s), or prosthetist/orthotist(s) must be licensed in accordance with the Act [this chapter].

§114.25. Temporary License for Practitioners.

(a) A temporary license may be issued under this section to a person who:

[(1) has become a Texas resident as defined in §114.10(38), within the twelve (12) month period preceding application for a temporary license;]

(1) [(2)] has applied for a practitioner license; and

(2) [(3)] has practiced orthotics or prosthetics or both for the five years preceding the date of the application [regularly since January 1, 1996 or earlier]; and [or]

(3) [(4)] has been licensed by a [the] state [in which the person formerly resided if] that [state] has license requirements that are equal to or exceed the requirements of the Act and this chapter.

(b) - (c) (No change.) 

§114.26. Student Registration.

(a) Student registration provides authorization for a person to perform prosthetic [practice prosthetics] or orthotic duties under supervision [orthotics] while fulfilling the postgraduate requirements for licensure by examination or when working in accordance with §114.30(j)(3).

(b) Eligibility. The department shall issue or renew a student registration certificate if the applicant:

(1) - (3) (No change.)

(4) is actively engaged in either:

(A) completing a professional clinical residency; [or]

(B) applying for or awaiting the results of the examination, and has completed the professional clinical residency; or

(C) working under supervision in accordance with §114.30(j)(3).

(c) - (f) (No change.)

§114.27. Assistant License.

(a) (No change.)

(b) Clinical residency for an assistant.

(1) - (3) (No change.)

(4) The resident shall work [practice] under the direct supervision of a licensed practitioner. The supervisor must be licensed in the same discipline as the course of study being completed by the clinical resident.

(c) Scope of practice.

(1) When assistant patient care services are performed by a licensed assistant, the supervising licensed practitioner of that assistant must review and sign off on the clinical note written by the assistant within fifteen [ten] working days of the date the service was provided.

(2) - (8) (No change.)

(9) Assistants may [only] practice only in a facility accredited under §114.29, or in a facility to which the accreditation requirement does not apply in accordance with §605.260(e) of the Act.

§114.28. Technician Registration.

(a) - (c) (No change.)

(d) A [registered] technician is not authorized to provide patient care to orthotic or prosthetic patients, including ancillary or assistant patient care services.

(e) (No change.)

§114.29. Accreditation of Facilities.

(a) The purpose of accreditation is to identify for prospective patients, referral sources, and third-party payers which prosthetic or orthotic facilities meet the department's requirements. This section is adopted under the Act, §605.260. All facilities where orthotics and prosthetics are provided by persons licensed or registered under this title must be accredited under the Act [this chapter], unless the facility is one to which the accreditation requirement does not apply in accordance with §605.260(e) of the Act.

(b) The accreditation [Accreditation] requirement is inapplicable to the following [certain] facilities: [. The accreditation requirement of the Act does not apply to a facility licensed under the Health and Safety Code, Title 4, in accordance with §605.260(e) of the Act. These facilities include hospitals, convalescent and nursing homes, ambulatory surgical centers, birthing centers, abortion facilities, continuing care facilities, personal care facilities, special care facilities, maternity homes, and end-stage renal disease facilities.]

(1) A facility licensed under the Health and Safety Code, Title 4, in accordance with §605.260(e) of the Act. These facilities include hospitals, convalescent and nursing facilities, ambulatory surgical centers, continuing care facilities, assisted living facilities, and end stage renal disease facilities; or

(2) Any facility that does not hold itself out as performing or offering to perform orthotics or prosthetics, and at which persons providing health care services do not perform or hold themselves out as performing or offering to perform orthotics or prosthetics.

[(c) Requirement for practice setting of licensees.]

[(1) A person licensed under the Act, Texas Occupations Code, Chapter 605, who practices in Texas shall practice only in facilities accredited under the Act, unless the type of practice is exempted by the Act, §§605.301 - 605.305, or the facility is one to which the accreditation requirement does not apply in accordance with §605.260(e) of the Act.]

[(2) A facility shall not be required to achieve accreditation under this section if the facility or person(s) providing health care services at the facility do not perform or hold itself or themselves out as performing or offering to perform prosthetics or orthotics.]

(c) [(d)] Accreditation application. The application shall be completed and submitted to the department on a department-approved form. The application shall be accompanied by the appropriate fee.

(1) (No change.)

(2) The application for accreditation must include:

(A) - (C) (No change.)

(D) labeled photographs of all laboratory [lab] and fabrication areas.

(3) - (5) (No change.)

(d) [(e)] Personnel requirements for accredited facilities. Accredited facilities shall have the following staff and shall comply with the following conditions:

(1) - (3) (No change.)

(e) [(f)] General requirements for accredited facilities.

(1) - (7) (No change.)

(8) An accredited facility must display the license certificates of its practitioners in a prominent location in the facility where they are available for inspection by patients, and by the public upon request.

(9) (No change.)

(10) An accredited facility shall have the equipment, tools, and materials to provide casting, measuring, fitting, repairs and adjustments of orthoses and prostheses, as applicable.

(f) [(g)] Failure to achieve accreditation. Facilities that fail to achieve accreditation as required by the Act and the rules are noncompliant with the Act and rules and are subject to disciplinary action.

(g) [(h)] Facilities failing to renew the accreditation by the expiration date are subject to the late renewal fee schedule applicable to licensees in §60.83 of this title (relating to Late Renewal Fees).

(h) [(i)] Inspections.

(1) - (6) (No change.)

(i) [(j)] Facility cleanliness. The facility shall be constructed and maintained appropriately to provide safe and sanitary conditions for the protection of the patients and the personnel providing prosthetic and orthotic care.

(1) - (8) (No change.)

[(9) Facilities shall provide access to at least one restroom located on or adjacent to the premises of the facility that complies with applicable current Americans with Disabilities Act or Texas Accessibility standards. Chemical supplies shall not be stored in restrooms or other areas accessible to the public or to patients.]

(9) [(10)] Facilities shall not be utilized for living or sleeping purposes except as applicable to patients, and may not be used for any other purpose that would tend to make the premises unsanitary, unsafe, or endanger the health and safety of the public.

(j) [(k)] Patient waiting area.

(1) (No change.)

(2) Chairs with armrests must be provided in waiting rooms. Chairs without armrests or with or without wheels must be provided upon patient request.

[(3) A telephone must be made available for patient use.]

(k) [(l)] Examination/treatment rooms.

(1) - (2) (No change.)

(3) At least one chair [Chairs] with armrests shall [must] be available for use [provided] in each examination/treatment room [rooms]. Chairs without armrests or with or without wheels must be provided upon patient request.

(l) [(m)] Safety.

(1) - (3) (No change.)

(4) Laboratory [Lab]/Fabrication areas must be separated from other areas by walls or rigid doors and have adequate lighting.

(5) (No change.)

(6) Facilities shall provide access to at least one accessible restroom with handwashing facilities located on or adjacent to the premises of the facility. Chemical supplies shall not be stored in restrooms or other areas accessible to the public or to patients. [At least one safety manager shall be assigned to the facility. The safety manager shall develop, carry out, and monitor the safety program.]

(m) [(n)] Business office area.

(1) - (3) (No change.)

(4) All patient and facility records that are required to be retained or made available [Records] shall be kept for a minimum of five years.

[(o) General.]

[(1) Americans with Disabilities Act compliant restroom and hand washing facilities shall be safe and accessible to the patients.]

[(2) The facility shall have the equipment, tools, and materials to provide casting, measuring, fitting, repairs and adjustments of orthoses and prostheses, as applicable.]

§114.30. Professional Clinical Residency Requirements.

(a) The department will accept a professional clinical residency having standards that are equivalent to or exceed NCOPE standards and those set forth in the Act and this chapter, at the time the residency was being completed.

(b) - (f) (No change.)

(g) A professional clinical residency must provide the residents with a written description of the educational program, including the scope and duration of assignments to other facilities if part of the residency. The written description of the program must demonstrate equivalency to NCOPE requirements and must include:

(1) - (7) (No change.)

(8) limitations and restrictions of residency; [and]

(9) the name of the practitioner who is designated as the residency program director; and [.]

(10) the requirement under the Act to hold a current student registration during the term of the residency.

(h) (No change.)

(i) Responsibilities of the residency program director.

(1) - (3) (No change.)

(4) The program director shall ensure that residents hold a current student registration during the term of the residency.

(5) [(4)] The program director shall supervise residents during patient care.

(A) - (E) (No change.)

(6) [(5)] Evaluation of a resident's ability to assume graded and increasing responsibility for patient care must be completed quarterly. This determination is the residency program director's responsibility, in consultation with members of the teaching staff. The facility administration shall assure that, through the residency program director and staff, each program:

(A) - (C) (No change.)

(j) Resident responsibilities and qualifications.

(1) - (2) (No change.)

(3) After completing the clinical residency, a registered student may continue to work as a resident under supervision in accordance with the applicable requirements of §114.30.

(k) (No change.)        

(l) Completion of residency. The residency program director shall certify that a resident has successfully completed the residency only if the residency was conducted in accordance with this section.

§114.40. Renewal.

(a) Application. Unless the text clearly says otherwise, use of the term licensee shall include both licensees and registrants, and use of the term license shall include both licenses and registrations.

(1) (No change.)

[(2) At least thirty (30) days before the expiration date of a person's license, the department shall send notice to the licensee at the address in the department's records, of the expiration date of the license, the amount of the renewal fee due and a license renewal form that the licensee must complete and return to the department with the required renewal fee.]

(2) [(3)] 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) [(4)] 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) - (c) (No change.)

(d) Renewal for a retired performing voluntary charity care is a person who is:

(1) - (2) (No change.)

(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 [form], the renewal fee for a prosthetist or orthotist license, and documentation of the required continuing education hours.

(e) Renewal of facility accreditation.

(1) - (2) (No change.)

(3) [At least thirty (30) days before the expiration of a facility's accreditation, the department will send notice to the facility of the accreditation expiration date, the amount of the renewal fee due and an accreditation renewal application. Failure to receive a renewal application from the department does not exempt the facility from renewing its accreditation.] Each facility is responsible for renewing the accreditation [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 accreditation [license] shall not excuse failure to apply for renewal or late renewal.

(4) The department shall renew [issue] an accreditation for [renewal to] a facility that has met the requirements for renewal. The certificate shall be [It shall be affixed to or] displayed in a prominent location in the facility where it is available for inspection by the public [with the original accreditation and is the property of the department].

(5) (No change.)

(f) Expiration of license or accreditation.

(1) - (3) (No change.)

(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 [fees]). Facilities whose accreditation has expired may late renew the accreditation in accordance with §60.31 and §60.83.

§114.50. Continuing Education.

(a) - (i) (No change.)

(j) Reporting of continuing education credit.

(1) - (2) (No change.)

(3) The audit process shall be as follows:

(A) 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 notice [documentation].

(B) - (D) (No change.)

(k) - (q) (No change.)

§114.66. Advisory Board; Duties.

Purpose. The advisory board shall provide advice and recommendations to the department on technical matters relevant to the administration of the Act and this chapter.

§114.67. Advisory Board; Terms,[;] Vacancies.

(a) Members of the advisory board serve staggered six-year terms.  The terms of two or three members expire on February 1 of each odd-numbered year.

(b) If a vacancy occurs during a member's term, the presiding officer of the commission, with the commission’s approval, shall appoint a replacement who meets the qualifications for the vacant position to serve for the remainder of the term.

(c) A member of the advisory board may be removed from the advisory board pursuant to Texas Occupations Code §51.209, Advisory Boards; Removal of Advisory Board Member.

§114.68. Advisory Board; Officer.

The presiding officer of the commission, with the commission’s approval, shall designate a member of the advisory board to serve as the [members of the advisory board shall elect from the advisory board’s membership a] presiding officer of the advisory board [to serve] for a term of one year. The presiding officer of the advisory board may vote on any matter before the advisory board.

§114.69. Advisory Board; Meetings.

(a) Meetings of the advisory board shall be announced and conducted under the provisions of the Open Meetings Act, Texas Government Code, Chapter 551.

(b) The advisory board shall meet at the call of the presiding officer of the commission or the executive director.

(c) A quorum of the advisory board is necessary to conduct official business. A quorum is four members.

(d) Four or more advisory board members may call a special meeting of the advisory board by providing written notice not less than fourteen (14) days before the date of the meeting to the presiding officer of the commission, the executive director and all other members of the advisory board.

(e) Not more than two special meetings of the advisory board may be called under subsection (d) in a calendar year.

§114.75. Scope and Conditions of Practice.

(a) Initial patient consultation.

(1) Accredited Orthotic and/or Prosthetic Facilities. Practitioners may perform the initial consultation and evaluation, including preliminary casting, measuring, and scanning, of a self-referring patient in an accredited facility before an order is received.

(2) Other Facilities Providing Healthcare, Rehabilitation, or Therapy. Practitioners may perform the initial consultation for a patient in a facility providing healthcare, rehabilitation, or therapy only pursuant to:

(A) a written request for consultation for the specific patient that has been signed by a member of that patient’s healthcare team from the facility, including the licensed physician, health care professional, physical therapist, or occupational therapist; or

(B) a request initiated by the patient or the patient’s representative before any consultation in the facility is performed.

(b) Emergency consultation and treatment. Practitioners may perform initial consultation and/or treatment for a patient while in a hospital emergency room or department, operative room or holding area, or otherwise emergent situation pursuant to a written order or a documented verbal order that is corroborated by information in the patient’s medical record.

(c) Practitioners shall not provide or attempt to provide a consultation:

(1) in violation of this chapter; or

(2) that is prohibited by Texas Occupations Code, §102.001.

(d) Practitioners shall prohibit any person affiliated in any way with their practice, or the practice of an accredited facility for which they serve as practitioner in charge, from providing or attempting to provide a consultation:

(1) in violation of this chapter; or

(2) that is prohibited by Texas Occupations Code, §102.001.

(e) Order required. Practitioners and facilities shall ensure that the following standards are followed in the provision of orthotic and/or prosthetic services.

(1) All fitting, including diagnostic fitting, and/or delivery requires a written order. The order initially may be provided verbally and documented in the patient’s record. A subsequent written order must be obtained promptly.

(2) The order must be obtained from a licensed physician or authorized health care professional, and must be in the format prescribed by the law and rules governing the prescribing physician or health care professional.

(3) A practitioner shall obtain a new order before providing a new orthosis or prosthesis to an established patient.

(4) A practitioner may adjust, repair or maintain an orthosis or prosthesis, and provide replacement soft goods, supplies, and components in accordance with the existing order for an established patient.

(f) Requirement for practice setting of licensees.

(1) A person licensed under the Act, Texas Occupations Code, Chapter 605, who practices in Texas shall practice only in facilities accredited under the Act unless the facility is one to which the accreditation requirement does not apply in accordance with §605.260(e) of the Act.

(2) Persons licensed or registered under this title may provide orthotic or prosthetic care to an established patient of an accredited facility in the patient’s private residence.

(3) The scope of practice in a facility accredited in accordance with the Act includes offsite practice by individual licensees and registrants as appropriate and commensurate with the medical or physical limitations or disabilities of the patient.

§114.80. Fees.

(a) All fees paid to the department are nonrefundable. [Unless otherwise specified, the fees established in this section must be paid to the department before a license, registration, or accreditation will be issued or renewed.] A new application for accreditation of a facility and payment of the initial accreditation fee may be required for certain changes at a facility in accordance with §114.29(c) [§114.29(d)].

(b) - (f) (No change.) 

[(g) All fees paid to the department are nonrefundable.]

§114.90. Professional Standards and Basis for Disciplinary Action.

(a) General. This section is authorized under the Orthotics and Prosthetics Act (Act), Texas Occupations Code, Chapter 605 [§605.353], and Chapter 51 of the Texas Occupations Code.

(1) - (2) (No change.)

(b) A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative [or civil] penalty may be imposed when a license is obtained by fraud, misrepresentation, or concealment of a material fact, which includes, but is not limited to, the following:

(1) - (7) (No change.)

(c) Fraud or deceit concerning services provided. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative [or civil] penalty may be imposed for fraud or deceit concerning services provided, which includes, but is not limited to, the following:

(1) - (13) (No change.)

(14) taking without authorization medication, supplies, equipment, or property [personal items] belonging to a patient; and

(15) (No change.)

(d) Unprofessional or unethical conduct. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative [or civil] penalty may be imposed for unprofessional or unethical conduct, as defined in subsections (b) and (c). Other action that may cause a license, registration, or facility accreditation to be denied, not renewed, revoked, suspended, or that may cause an administrative [or civil] penalty to be imposed include, but are not limited to:

(1) - (4) (No change.)

(5) failing to maintain acceptable standards of prosthetics or orthotics practices as set forth by the department [in] rules [adopted pursuant to this chapter];

(6) - (22) (No change.)

(23) fitting a prosthesis or orthosis without an order [prescription];

(24) fitting a prosthesis or orthosis inaccurately or modifying the order [prescription] without authorization from the prescribing physician or health care professional;

(25) - (27) (No change.)

(28) failing to report a known violation of the Act or this chapter to the department;

(29) [(28)] failing to comply with an order issued by the executive director or the commission; and

(30) [(29)] other unprofessional or unethical conduct.

(e) Gross negligence or malpractice. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative [or civil] penalty may be imposed for gross negligence or malpractice, which includes, but is not limited to, the following.

(1) - (2) (No change.)

(f) Interference with an investigation. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative [or civil] penalty may be imposed for interference with a department investigation by the misrepresentation of facts to the department or its authorized representative or by the use of threats or harassment against any person.

(g) (No change.)

(h) Frivolous complaints. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative [or civil] penalty may be imposed for filing a complaint with the department that is frivolous [s] or made in bad faith.

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