JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Continuing Education Requirements
16 TAC Chapter 110, amendments to §59.3, 59.10, 59.20, 59.21, 59.30, 59.51, 59.80 and 59.90

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 59, §59.10, 59.20, 59.21, 59.30, 59.51, 59.80 and 59.90, regarding the Continuing Education Requirements, without changes to the proposed text as published in the May 27, 2016, issue of the Texas Register (41 TexReg 3804). The rules will not be republished.

The Commission also adopts amendments to an existing rule at 16 TAC, Chapter 59, §59.3, with changes to the proposed text as published in May 27, 2016, issue of the Texas Register (41 TexReg 3804). The rule will be republished.

The adopted amendments update the continuing education requirements for the different professions regulated by the Texas Department of Licensing and Regulation (Department) and general language clean up. The adopted amendments are necessary to allow the Department to streamline continuing education requirements across several professions. The adopted amendments also provide the Department with better enforcement tools to hold the continuing education providers accountable to the consumers they serve.

The adopted amendments to §59.3 add “booting operators” and “elevator contractor responsible party and registered elevator inspector” to the occupations which are required to take continuing education. Also, licensed court interpreters was removed from the listed professions since the Department no longer has regulatory authority over the profession.

The adopted amendments to §59.10 add “current on the payment” to the definitions and clarifies the definition of continuing education provider. Editorial changes are made to renumber the section.

The adopted amendments to §59.20 removes the requirement for a separate provider registration per occupation and adds the requirement for the provider to be current on all fees.

The adopted amendments to §59.21 adds the requirement for providers seeking renewal to be current on all fees.

The adopted amendments to §59.30 allows the Department to approve courses in increments of less than one hour and prevents the Department from approving a continuing education course from a provider that is not current on required fees.

The adopted amendments §59.51 requires the course completion report to include the total amount of continuing education record fees owed to the Department, if any. The proposed amendments also require the provider to pay all required fees and prohibits the provider from enrolling a participant into a continuing education course without Department approval if fees are owed.

The adopted amendments to §59.80 adds a record fee and clean up expired language.

The adopted amendments to §59.90 allows the Department to seek an administrative sanction against a person for failing to pay the Department all required fees, including record fees, or administrative penalties and allows the Executive Director to probate a license.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the May 27, 2016, issue of the Texas Register (41 TexReg 3804). The deadline for public comments was June 27, 2016. The Department received comments from twelve interested parties on the proposed rules during the 30-day public comment period.

Comment--One commenter does not agree with barbers being required to take continuing education.

Department Response--Under Texas Occupations Code, Chapter 1601 and 1603, Barbers are not required to take continuing education and have not been added to these proposed rules. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One commenter would like to keep the four hours of continuing education for driver education and safety school owners and would also like to have the Department hold continuing education classes alongside the Texas Department of Public Safety.

Department Response--Continuing education for the Driver Education and Safety program is administered differently by the Department and it is governed by the Education Code, Chapter 1001 and 16 TAC, Chapter 84. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One commenter described their work experience and wanted to know if the experience could count as continuing education for the renewal of their Cosmetology license.

Department Response--The comment was forwarded to the Department’s licensing division for response. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One commenter suggested eliminating the online continuing education course; making the course sixteen hours; and having the Department conduct the course for the air conditioning and refrigeration license.

Department Response--Online courses provide licensees with more flexibility and options to complete continuing education requirements. The number of continuing education hours required for an air conditioning and refrigeration license is set forth in the air conditioning and refrigeration contractors rules in 16 TAC, Chapter 75 and not addressed by these proposed amendments. In addition, the Department does not conduct courses as to not impede upon provider business practices and the Department would be in direct competition with the industries. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One commenter thinks the continuing education provider system is unfair because of lack of competition. The commenter suggested the Department assign the provider to the licensee renewal.

Department Response--The Department posts a list of all registered continuing education providers for each program on the Department’s official website. The information is accessible to everyone and allows consumers to choose their preferred provider instead of having the Department assign providers to the licensees. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One commenter does not agree with the continuing education fees.

Department Response--On November 21, 2013, the Texas Commission on Licensing and Regulation approved a reduction in applications fees for Continuing Education Providers. The fee for initial and renewal applications were reduced from $250 to $200, effective March 1, 2014. Additionally, the proposed changes would no longer require providers to pay registration fees per occupation. The Department strives to set fees that are reasonable and necessary only to cover the costs of administering the programs. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One commenter recommended having the Police Departments and Fire Departments attend training with tow truck operators.

Department Response--The Department has no authority over training requirements for Police Departments and Fire Departments. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One commenter is disappointed by the lack of interest the Tow industry shows toward continuing education and the lack of enforcement regarding provider fee collections.

Department Response--The proposed amendments seek to provide the Department with better enforcement tools to hold continuing education providers accountable to the consumers. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One commenter wanted to know how this rule change would affect the Property Tax Professionals, specifically: will CE providers be required to pay a registration fee and if this inclusion will conflict with the property tax professional statute.

Department Response--Continuing education for the Property Tax Professionals program is uniquely administered by the Department with the assistance of the Texas Comptroller of Public Accounts as required by the Texas Occupations Code, Chapter 1151. The Texas Comptroller of Public Accounts has raised concerns that addition of the Property Tax Professionals to 16 TAC Chapter 59 may cause confusion. The Department does not foresee any conflict with the inclusion of the Property Tax Professionals Program as proposed; however, to eliminate the confusion regarding continuing education requirements the Department has removed the property tax professionals program from §59.3 and will work with the Texas Comptroller of Public Accounts to address concerns.

Comment--One commenter would like the costs for opening a new driver training school reduced and better enforcement to eliminate corruption.

Department Response--The Department strives to set fees that are reasonable and necessary only to cover the costs of administering the programs. Additionally, the proposed amendments seek to update the continuing education requirements for specifically listed professions regulated by the Department. Driver Education and Safety was not included because it is administered differently by the Department and governed by Education Code, Chapter 1001 and 16 TAC, Chapter 84. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--Three comments expressed concern about implementing the ‘record fee’ for the property tax professionals program and believes it will force continuing education providers out of the business. In addition, one of the comments would also like stricter continuing education classes to prevent fraud.

Department Response--The ‘record fee’ is statutorily required by the Cosmetology and Tow Operators programs and does not apply to the Property Tax Professionals program. Furthermore, the proposed amendments seek to provide the Department with better enforcement tools to hold continuing education providers accountable to the consumers. The Department did not make any changes to the proposed rules as a result of this comment.

The amendments are adopted under Texas Occupations Code, Chapter 51, 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 adoption are those set forth in Texas Occupations Code, Chapter 51. No other statutes, articles, or codes are affected by the proposal.

§59.3. Purpose and Applicability.
These rules are promulgated to establish continuing education provider and course requirements for the following occupations regulated by the Department of Licensing and Regulation:
(1) Air conditioning and refrigeration contractors, as provided by Texas Occupations Code, Chapter 1302. Additional continuing education requirements relating to air conditioning and refrigeration contractors may be found in Chapter 75 of this title.

(2) Auctioneers, as provided by Texas Occupations Code, Chapter 1802. Additional continuing education requirements relating to auctioneers may be found in Chapter 67 of this title.

(3) Booting operators, as provided by Texas Occupations Code, Chapter 2308. Additional continuing education requirement relating to booting may be found in Chapter 89 of this title.

(4) Cosmetologists, as provided by Texas Occupations Code, Chapters 1602 and 1603. Additional continuing education requirements relating to cosmetologists may be found in Chapter 83 of this title.

(5) Electricians, as provided by Texas Occupations Code, Chapter 1305. Additional continuing education requirements relating to electricians may be found in Chapter 73 of this title.

(6) Elevator contractor responsible party and registered elevator inspector, as provided by Texas Health and Safety Code, Chapter 754, Subchapter B. Additional continuing education requirements relating to responsible parties may be found in Chapter 74 of this title.

(7) Polygraph examiners, as provided by Texas Occupations Code, Chapter 1703. Additional continuing education requirements relating to polygraph examiners may be found in Chapter 88 of this title.

(8) Property tax consultants, as provided by Texas Occupations Code, Chapter 1152. Additional continuing education requirements relating to property tax consultants may be found in Chapter 66 of this title.

(9) Registered accessibility specialists, as provided by Texas Government Code, Chapter 469. Additional continuing education requirements relating to registered accessibility specialists may be found in Chapter 68 of this title.

(10) Towing operators, as provided by Texas Occupations Code, Chapter 2308. Additional continuing education requirements relating to towing operators may be found in Chapter 86 of this title.

(11) Water well drillers and pump installers, as provided by Texas Occupations Code, Chapters 1901 and 1902. Additional continuing education requirements relating to water well drillers and pump installers may be found in Chapter 76 of this title.

§59.10. Definitions.

The following terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Commission--The Texas Commission of Licensing and Regulation.

(2) Continuing Education Courses or Courses--Department-approved courses that may be completed to satisfy continuing education requirements.

(3) Continuing Education Provider or Provider--A person registered by the department to offer continuing education courses, in any occupation that offers continuing education.

(4) Current on the Payment--A provider applicant or provider is considered current on the payment of any required fees or administrative penalties if the provider applicant or provider is making payments as provided by an agreed payment schedule with the department.

(5) Day--A calendar day.

(6) Department--The Texas Department of Licensing and Regulation.

§59.20. Provider Registration.

(a) Continuing education providers must be registered with the department to provide or offer to provide continuing education courses.

(b) To register, an applicant shall:

(1) file a completed application on the appropriate department-approved form;

(2) pay all applicable fees;

(3) be current on the payment of any unpaid required fees, including record fees, or administrative penalties; and

(4) demonstrate the capability to meet the requirements of this chapter and other applicable department requirements.

§59.21. Provider Registration Renewals.

(a) Provider registrations are valid for one year and may be renewed at the end of each registration period.

(b) To renew a registration, a provider shall:

(1) file a completed application for renewal on the appropriate department-approved form;

(2) pay all applicable fees; and

(3) be current on the payment of any unpaid required fees, including record fees, or administrative penalties.

(c) Late renewal fees for registrations issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

§59.30. Continuing Education Course.

(a) Each continuing education course offered by a provider must be approved by the department before being offered.

(b) A provider must obtain a separate course approval for each occupation (electrician, auctioneer, etc.) which will be awarded continuing education credit for a particular course.

(c) Except as provided in subsection (d) of this section, course approvals are valid for one year and must be submitted annually for approval.

(d) If a provider's registration expires, all course approvals for that provider expire upon the expiration of the registration.

(e) To obtain approval of a course, a provider must file a completed application on the appropriate department-approved form with all applicable fees.

(f) Each application for course approval shall be accompanied by:

(1) subject matter outline, including time allotted for each segment; and

(2) copies of course materials such as textbooks, videos, tapes, handouts, study materials, and any additional documentation.

(g) Course materials must have the following characteristics:

(1) appropriate grammar, spelling and punctuation;

(2) appropriate illustrations and graphics to show concepts not easily explained in words; and,

(3) a comprehensive presentation of subject matter intended to increase or maintain the skills or competence of the Licensee.

(h) Unless commission rules relating to continuing education requirements for a specific occupation provide otherwise, continuing education courses shall cover one or more of the following aspects in the area of licensure:

(1) technical,

(2) business,

(3) health,

(4) safety,

(5) legal, or,

(6) other relevant topics approved by the department.

(i) Courses designed specifically to promote a manufacturer's product will not be considered for approval.

(j) Upon approval the department will determine the number of hours of continuing education credit for a course.

(k) One hour of continuing education credit is equivalent to 50 minutes of actual instruction time.

(l) The department may approve courses in increments of less than one hour of continuing education credit.

(m) To determine whether a provider is complying with the requirements of this chapter, department employees and representatives may conduct on-site audits of a provider and any continuing education courses offered by a provider. Audits may be conducted without prior notice to the provider, and department employees and representatives may enroll and attend a course without identifying themselves as employees or representatives of the department.

(n) Department employees and representatives performing an audit may not be required to pay any fee to a provider for enrolling in or attending a course.

(o) The department may not approve a continuing education course from a provider that is past due or not current on the payment of any unpaid required fees, including record fees, or administrative penalties.

§59.51. Responsibilities of Providers.

(a) A provider must ensure that courses are delivered in a manner conducive to learning.

(b) A provider must include in all advertisements for a continuing education course the provider's number and the course number assigned to it by the department. Provider web page announcements concerning courses are considered advertisements for purposes of this rule.

(c) A provider must ensure that instructors possess both the subject matter knowledge they are teaching as well as the teaching ability required to impart the information.

(d) No later than 15 days after the course completion date, a provider must issue to each participant who attended the entire course a certificate of completion that includes the following information:

(1) name and number of course;

(2) course completion date;

(3) provider name and number;

(4) number of hours of continuing education credit for which the course is approved;

(5) signature of the provider representative; and

(6) name, license type and license number of the participant who attended.

(e) A provider must submit to the department, on the appropriate department-approved form, a course completion report no later than seven days after the course completion date. The report shall include the following information:

(1) name and number of course;

(2) course completion date;

(3) provider name and number;

(4) the location where the course was taught;

(5) the number of participants to whom a certificate was issued;

(6) the name, license type and license number of each participant to whom a certificate of completion was issued; and

(7) the total amount of continuing education record fees owed to the department, if any.

(f) A provider must retain participant course completion records for a period of two years after completion of a course.

(g) Upon request, a provider shall provide to a participant, within ten days of the date of the request, copies of the participant's records. A reasonable fee to cover copying costs may be charged to the participant.

(h) Upon request, a provider shall provide information, including copies of specified records, to the department within ten days of the date of the request.

(i) A provider shall cooperate fully with the department, its employees and representatives in the investigation of a complaint or performance of an audit.

(j) A provider may not publish false or misleading advertisements.

(k) An advertisement which contains a fee charged by a provider shall display all fees for the course in the same place in the advertisement and with the same degree of prominence. If the provider requires participants to purchase course materials which are not included in the tuition, such fees must appear in the advertisement.

(l) Providers are responsible for the conduct and administration of their courses, including the punctuality of classroom sessions, verification of participant attendance and instructor performance. Providers shall ensure that their courses are administered in substantially the same manner as represented in the application for course approval.

(m) A provider must pay all required fees, including record fees, or administrative penalties, in a manner prescribed by the department.

(n) Upon notification by the department that a provider is past due or not current on the payment of any unpaid required fees, including record fees, or administrative penalties, a provider may not enroll a participant in a continuing education course without department approval.

§59.80. Fees.

(a) Provider application fee--$200.

(b) Provider renewal application fee--$200.

(c) Course-approval fee per occupation--$100.

(d) Revised/Duplicate License/Certificate/Permit/Registration--$25.

(e) Record fee, if required--$5 per licensee.

(f) All fees paid to the department are non-refundable.

§59.90. Sanctions--Administrative Sanctions and Penalties.

(a) If a person violates any provision of this chapter, or any provision of a statute or rule administered by the department, or a commission or executive director order, the department may assess administrative penalties pursuant to Texas Occupations Code, §51.301 and §51.302 or administrative sanctions pursuant to Texas Occupations Code, §51.353.

(b) Any of the following actions by a person is a violation of this chapter and may result in the assessment of administrative penalties or administrative sanctions against the person:

(1) Changing a program teaching method or course content without the approval of the department;

(2) Issuing a certificate of completion to an individual who did not complete the approved course;

(3) Refusing to issue a certificate of completion to an individual who has satisfactorily completed an approved course;

(4) Fraud or misrepresentation in an application process for provider registration or course approval;

(5) Fraud or misrepresentation regarding maintenance of records, teaching method, program content, or issuance of certificates;

(6) Failing to cooperate with the department in an investigation or audit; or

(7) Failing to pay the department all required fees, including record fees, or administrative penalties.

(c) An order of suspension issued under this section may be probated upon reasonable terms and conditions as determined by the commission or executive director.

(d) A person will have an opportunity for an administrative hearing pursuant to the provisions of Chapter 2001, Government Code if the department proposes to assess any administrative penalties or sanctions.

This agency hereby certifies that the adoption has 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 September 2, 2016.

Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation