Proposed Administrative Rules

Chapter 114. Orthotists and Prosthetists Program

Proposal Filed: September 23, 2019 – Published in the Texas Register: October 4, 2019

Deadline for Public Comment: November 4, 2019.

Underlined text 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, 114.21, 114.23, 114.28, 114.50, 114.80, and 114.90, and include an amendment to the rule chapter title, regarding the Orthotists and Prosthetists program . These proposed changes are referred to herein as “proposed rules.”

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 114 implement Texas Occupations Code, Chapter 605, Orthotists and Prosthetists.

The proposed rules implement House Bill (HB) 2847, Article 11, 86th Legislature, Regular Session (2019), which repeals §§605.002(19), (20), and (21), Definitions, and §605.259, technician registration, from the Occupations Code, eliminating the technician registration from the Orthotists and Prosthetists program. The registration of technicians was voluntary and there was little demand for the credential, so eliminating it was supported by the Department and the professionals in this field. The proposed rules are necessary to remove all requirements in Chapter 114 that are related to the technician registration. Other amendments to the rule chapter title and citations to the orthotists and prosthetists statute are made for consistency with the statute, to remove unnecessary text, and a change in §114.50 improves a wording choice.

The proposed rules and issues were presented and discussed at the Orthotists and Prosthetists Advisory Board meeting on September 12, 2019. The Advisory Board did not make any changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed amendment to the chapter title renames the chapter to be consistent with Occupations Code, Chapter 605, Orthotists and Prosthetists.

The proposed amendments to §114 .10 remove unnecessary text, make a citation consistent with the statute, and remove the definitions of “registered orthotic technician,” “registered prosthetic technician,” and “registered prosthetic/orthotic technician” because these credentials will no longer exist. A definition for “technician” is added because technicians will continue to work for licensees in the Orthotists and Prosthetists program. The definitions within the section are renumbered accordingly.

The proposed amendments to §114.20 removes provisions related to disapproval of a technician registration application.

The proposed amendments to §114.21 removes the technician registration renewal period.

The proposed amendments to §114.23 removes unnecessary text.

The proposed amendments to §114.28 remove technician registration requirements and specify the scope of work technicians may perform under the direction of licensees in the Orthotists and Prosthetists program.

The proposed amendments to §114.50 remove the technician continuing education requirements and improve a wording choice.

The proposed amendments to §114.80 remove fees for technician registrations and renewals, and renumber the section accordingly.

The proposed amendments to §114.90 correct a citation to the statute.

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 the state or to local governments as a result of enforcing or administering the proposed rules. Mr. Couvillon has also determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase in revenue to the state or to local governments as a result of enforcing or administering the proposed rules. Local governments will experience no loss in revenue, and the state expects a minor reduction in revenue of $550 annually because it will no longer collect license fees for technicians.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect local economies, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. The elimination of the voluntary technician credential does not eliminate the job or the need for orthotic and prosthetic technicians.

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 a reduction in costs (savings) to persons who chose to be a technician, and therefore do not have to pay the related fees to obtain and renew a registration and to take continuing education. Employers who paid the fee or continuing education costs on behalf of staff likewise will no longer have these costs and will not have to pass them along to clients if they currently do so.

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 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 will be no 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 rules 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, is 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 decrease fees paid to the agency because no technician registration fees will be collected upon the repeal of the credential.

5. The proposed rules do not create a new regulation.

6. The proposed rules repeal an existing regulation by removing the requirements related to the technician registration from the rule chapter, as required by the statutory repeal of the credential.

7. The proposed rules decrease the number of individuals subject to the rule's applicability by removing the technician registration from the rule chapter, as required by the statutory repeal of the credential.

8. The proposed rules do not positively or adversely affect this state's economy.

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 to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically to: erule.comments@tdlr.texas.gov . The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 605, which authorize the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

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

CHAPTER 114. ORTHOTISTS[ ORTHOTICS] AND PROSTHETISTS[ PROSTHETICS ].

§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) Act--The Orthotists[ Orthotics ] and Prosthetists[ Prosthetics ] Act, Texas Occupations Code, Chapter 605.

(2) - (33) (No change.)

[ (34) Registered orthotic technician--A person registered under the Act who fabricates, assembles, or services orthoses under the direction of a licensed orthotist, licensed prosthetist/orthotist, licensed orthotist assistant, or licensed prosthetist/orthotist assistant responsible for the acts of the technician. ]

[ (35) Registered prosthetic technician--A person registered under the Act who fabricates, assembles, or services prostheses under the direction of a licensed prosthetist, licensed prosthetist/orthotist, licensed prosthetist assistant, or licensed prosthetist/orthotist assistant responsible for the acts of a technician. ]

[ (36) Registered prosthetic/orthotic technician--A person registered under the Act who fabricates, assembles, or services prostheses and orthoses under the direction of a licensed prosthetist, a licensed orthotist, a licensed prosthetist/orthotist, a licensed prosthetist assistant, licensed orthotist assistant, or licensed prosthetist/orthotist assistant responsible for the acts of the technician. ]

(34) [ (37) ] Safety manager--An employee of an accredited facility who is assigned to develop, carry out and monitor an accredited facility's safety program.

(35) Technician--A person who fabricates, assembles, or services prostheses or orthoses under the direction of a licensed prosthetist, a licensed orthotist, a licensed prosthetist/orthotist, a licensed prosthetist assistant, licensed orthotist assistant, or licensed prosthetist/orthotist assistant responsible for the acts of the technician.

(36) [ (38) ] 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) has failed or refused to properly complete or submit application form(s) or endorsement(s) or has knowingly presented false or misleading information on the application form or other form or documentation required by the department to verify the applicant's qualifications for a license;

(2) has obtained or attempted to obtain a license issued under the Act by bribery or fraud;

(3) has made or filed a false report or record made in the person's capacity as a prosthetist, orthotist, prosthetist/orthotist, prosthetist assistant, orthotist assistant, or prosthetist/orthotist assistant[ , prosthetic technician, orthotic technician, or prosthetic/orthotic technician ];

(4) has failed to file a report or record required by law;

(5) has obstructed or induced another to obstruct the filing of a report or record required by law;

(6) has engaged in unprofessional conduct including the violation of the prosthetic and orthotic standards of practice as established by the department in §114.90;

(7) has developed an incapacity that prevents prosthetic or orthotic practice with reasonable skill, competence, or safety to the public as the result of a physical or mental condition or illness or drug or alcohol dependency;

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

(9) has violated a provision of the Act, a rule adopted under the Act, or an order issued by the executive director or the commission;

(10) has been excluded from participation in Medicare, Medicaid, or other federal or state cost-reimbursement programs due to fraudulent activities;

(11) has committed a prohibited act under the Act, §§605.351 - 605.352; 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.

§114.21. Licenses and Licensing Procedures.

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

(c) Term of license.

(1) A license [ or registration ] shall be issued for a two year period.

(2) A temporary license shall be issued for a one year period, and may be renewed for one additional one year period.

(3) A student registration shall be issued for a two-year period, and may be renewed for one additional two year period.

(d) - (g) (No change.)

§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.

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

§114.28. Technician [ Registration ].

(a) A technician must be supervised by a licensed prosthetist, orthotist, prosthetist/orthotist, prosthetist assistant, orthotist assistant, or prosthetist/orthotist assistant.

(b) A licensed prosthetist, orthotist, prosthetist/orthotist, prosthetist assistant, orthotist assistant, or prosthetist/orthotist assistant shall direct the activities of a technician and is responsible for the acts of the technician.

[ (b) To qualify for registration as a technician, an applicant must submit: ]

[ (1) a supervision agreement form to show proof of a current supervisory relationship or tentative supervisory relationship, as described in subsection (a); ]

[ (2) a copy of: ]

[ (A) an official diploma or official transcript indicating graduation from high school or a certificate of high school equivalency; or ]

[ (B) official transcripts from a regionally accredited college or university, showing that the applicant earned at least three semester hours of credit; and ]

[ (C) documentation, acceptable to the department, demonstrating completion of not less than 1,000 hours of laboratory experience as a prosthetic technician or as an orthotic technician. ]

[ (c) Registration as a technician is voluntary. ]

(c) [ (d) ] A technician may fabricate, assemble, or service orthoses or prostheses only under the direction of person licensed under this chapter and is not authorized to provide patient care to orthotic or prosthetic patients, including ancillary or assistant patient care services.

(d) [ (e) ] Notwithstanding the supervision requirements in this section, the department may establish procedures, processes, and mechanisms for the monitoring and reporting of the supervision requirements.

§114.50. Continuing Education.

(a) This section applies to licensees [ and registrants ] of the department. This section does not apply to a temporary license or a student registration.

(b) The first continuing education period shall begin after the licensee has renewed the [ his or her ] license for the first time. Continuing education is not required during the initial license period. Subsequently, a licensee shall attend continuing education activities as a condition of renewal of a license.

(c) Continuing education periods shall be two years in length. The period coincides with the license period.

(d) Determination of continuing education credits.

(1) For seminars, lectures, presentations, symposia, workshops, conferences and similar activities, 50 minutes shall be considered as one credit hour.

(2) Course work completed at or through an accredited college or university shall be credited based on eight credits for each semester hour completed for credit. Continuing education credit will be granted for a grade of C or better for the continuing education period in which the course is completed.

(e) Licensees shall attend and complete qualifying continuing education each renewal period unless the licensee is exempt under subsection (l).

(1) Licensees must maintain a record of continuing education credits earned by the licensee and proof of completion of the continuing education credits, which may include certificates, transcripts from certifying agencies or associations, letters from program sponsors concerning the licensee's attendance and participation, or other documentation satisfactory to the department verifying the licensee's attendance or participation.

(2) Attendance and completion of the following number of continuing education credits are required during each renewal period:

(A) prosthetist or orthotist license--24;

(B) prosthetist and orthotist license--40;

(C) prosthetist or orthotist assistant--12;

(D) prosthetist and orthotist assistant--20; and

[ (E) prosthetic or orthotic technician--6; ]

(F) prosthetic and orthotic technician--10; and ]

(E) [ (G) ] prosthetist with orthotist assistant license or orthotist with prosthetist assistant license--32.

(f) - (q) (No change.)

§114.80. Fees.

(a) All fees paid to the department are nonrefundable. 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).

(b) Schedule of fees.

(1) prosthetist or orthotist license or license renewal--$300;

(2) prosthetist/orthotist license or license renewal--$400;

(3) prosthetist or orthotist assistant license or license renewal--$200;

(4) prosthetist/orthotist assistant license or license renewal--$250;

[ (5) prosthetic or orthotic technician registration or registration renewal--$100; ]

[ (6) prosthetic/orthotic technician registration or registration renewal--$150; ]

(5) [ (7) ] prosthetic or orthotic student registration or registration renewal--$75;

(6) [ (8) ] prosthetic/orthotic student registration or registration renewal--$100;

(7) [ (9) ] prosthetist or orthotist temporary license or temporary license renewal--$150;

(8) [ (10) ] prosthetist/orthotist temporary license or temporary license renewal--$200;

(9) [ (11) ] prosthetic or orthotic facility accreditation or accreditation renewal--$400;

(10) [ (12) ] prosthetic/orthotic facility accreditation or accreditation renewal--$500;

(11) [ (13) ] upgrade for student registrant after passing the examination:

(A) one category--$200;

(B) two categories--$300;

(12) [ (14) ] changing the name of the on-site practitioner in charge of an accredited facility--$50;

(13) [ (15) ] changing the name of the safety manager of an accredited facility--$50;

(14) [ (16) ] changing the name of an accredited facility--$50;

(15) [ (17) ] retired voluntary charity care prosthetist or orthotist license renewal--$150;

(16) [ (18) ] retired voluntary charity care prosthetist/orthotist license renewal--$200;

(17) [ (19) ] prosthetist with orthotist assistant license or orthotist with prosthetist assistant license renewal--$350;

(18) [ (20) ] license, registration, or accreditation duplicate or replacement--$25;

(19) [ (21) ] orthotic or prosthetic examination--shall be determined by the department and shall consist of the examination fee in accordance with the current examination contract plus an administrative fee.

(c) Late renewal fees for licenses issued under this chapter are prescribed under §60.83 [ of this title (relating to Late Renewal Fees) ].

(d) The fee for a dishonored/returned check or payment is the fee prescribed under §60.82 [ of this title (relating to Dishonored Payment Device) ].

(e) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 [ of this title (relating to Criminal History Evaluation Letters) ].

(f) Fees for dishonored/returned checks or payments and late renewal fees for accredited facilities shall follow the late fee schedule applicable to licenses under §60.82 and §60.83.

§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, ] and Chapter 51 of the Texas Occupations Code.

(1) If a person or entity violates any provision of Texas Occupations Code, Chapters 51, 605, or any other applicable provision, this chapter, or a rule or order issued by the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of the Texas Occupations Code and the associated rules.

(2) The enforcement authority granted under Texas Occupations Code, Chapters 51 and 605, and any associated rules may be used to enforce the Texas Occupations Code and this chapter.

(b) - (h) (No change.)

REVIEW BY AGENCY COUNSEL

The agency certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agency’s authority to adopt.

Filed with the Office of the Secretary of State, on September 23, 2019.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation