JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION

General Provisions For Health-Related Programs
16 TAC Chapter 100, new §100.1, 100.10, 100.20, 100.30, and 100.40

also see the Chapter 100 administrative rules page

The Texas Commission of Licensing and Regulation (Commission) adopts new rules at 16 Texas Administrative Code (TAC), Chapter 100, §100.1, 100.10, 100.20, 100.30 and 100.40, regarding the General Provisions for Health-Related Programs, without changes to the proposed text as published in the August 12, 2016, issue of the Texas Register (41 TexReg 5875). The rules will not be republished.

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the Department of State Health Services (DSHS) to the Texas Commission of Licensing and Regulation (Commission) and the Department. Under Phase 1, the following seven programs are being transferred from DSHS to the Commission and the Department: (1) Midwives, Texas Occupations Code, Chapter 203; (2) Speech-Language Pathologists and Audiologists, Chapter 401; (3) Hearing Instrument Fitters and Dispensers, Chapter 402; (4) Licensed Dyslexia Practitioners and Licensed Dyslexia Therapists, Chapter 403; (5) Athletic Trainers, Chapter 451; (6) Orthotists and Prosthetists, Chapter 605; and (7) Dietitians, Chapter 701. The statutory amendments transferring regulation of these seven Phase 1 programs from DSHS to the Commission and the Department took effect on September 1, 2015.

In particular, S.B. 202 added a new Section 51.2031, Occupations Code, which applies to the following six programs being transferred from DSHS: Midwives, Speech-Language Pathologists and Audiologists, Hearing Instrument Fitters and Dispensers, Athletic Trainers, Orthotists and Prosthetists, and Dietitians. For these professions the Commission may not adopt a new rule relating to the scope of practice or a health-related standard of care unless the rule has been proposed by the advisory board for the profession, and the Commission must adopt rules prescribing the procedure by which an advisory board may propose such a rule. In addition, Section 51.2031 requires the Commission to adopt rules clearly specifying the manner in which the Department and Commission will solicit input from, and on request provide information to, an advisory board established for one of these professions regarding the general investigative, enforcement, or disciplinary procedures of the Department or Commission. The adopted new rules under 16 TAC Chapter 100 are necessary to implement these provisions of Section 51.2031.

The adopted new §100.1 establishes which health-related programs this chapter applies to.

The adopted new §100.10 creates the definitions to be used in this chapter.

The adopted new §100.20 details the manner in which information will be provided to the advisory boards for these programs.

The adopted new §100.30 prescribes the procedure by which the advisory boards for these programs may propose a new rule relating to the scope of practice or a health-related standard of care.

The adopted new §100.40 directs the Department to develop enforcement procedures for these programs and lists the methods by which the Department may obtain health-related expertise in the investigation and resolution of complaints.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the August 12, 2016, issue of the Texas Register (41 TexReg 5875). The deadline for public comments was September 12, 2016. During the 30-day public comment period the Department received comments from the Texas Medical Association on the proposed rules. The public comments received are summarized below.

Comment--The Texas Medical Association (TMA) recommended all of the affected health-related advisory boards to be listed in the rules to clarify who the Department is seeking advice from and recommended some related clarifying amendments. TMA also suggested the opinions and recommendations received from advisory boards regarding enforcement procedures should be binding on the Commission and the Department.

Department Response--The Department relies heavily on the input and expertise of the advisory boards and will seek input from the respective boards regarding developing procedures. However, the Department is responsible for its work load and may need to adjust the procedures as the transition occurs to ensure consistency across programs. This comment is also inconsistent with the statutory framework, which makes the boards advisory. Therefore, the Department believes that the recommendations should not be binding on the Commission or the Department. In addition, the Department does not believe it is necessary to list each advisory board since the rules identify each program this section applies to. The Department did not make any changes to the proposed rules as a result of this comment.

At its meeting on October 5, 2016, the Commission adopted the proposed rules without changes as recommended by the Board, and with a change to remove any bar to online continuing education hours for license renewal.

The new rules are adopted under Texas Occupations Code, Chapters 51, 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 451 (Athletic Trainers); 605 (Orthotists and Prosthetists); and 701 (Dietitians), 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, Chapters 51, 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 451 (Athletic Trainers); 605 (Orthotists and Prosthetists); and 701 (Dietitians). No other statutes, articles, or codes are affected by the proposal.

Chapter 100. General Provisions for Health-Related Programs.

§100.1. Applicability.

(a) This chapter applies to the regulation of the following professions by the department:

(1) athletic trainers;

(2) dietitians;

(3) hearing instrument fitters and dispensers;

(4) midwives;

(5) orthotists and prosthetists; and

(6) speech-language pathologists and audiologists.

(b) The provisions of this chapter are in addition to all other provisions of law or commission rules that apply to the professions in subsection (a).

§100.10. Definitions.

The following terms have the following meanings when used in this chapter:

(1) Advisory Board--A board, committee, council, or other body that is established by law to advise the commission or department on rules, policies, and/or technical matters.

(2) Commission--Texas Commission of Licensing and Regulation.

(3) Department--Texas Department of Licensing and Regulation.

(4) Executive Director--The head administrative official of the department.

(5) License--A license, certificate, registration, title, commission, or permit issued by the department.

(6) Penalty or Administrative Penalty--A monetary fine imposed by the commission or the executive director on a licensee or other person who has violated this chapter or a statute or rule governing a program regulated by the department.

(7) Rule--Any commission statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedure or practice requirements of the department or commission.

(8) Sanction--An action by the commission or executive director against a license holder or another person, including the denial, suspension, or revocation of a license, the reprimand of a license holder, the placement of a license holder on probation, or refusal to renew.

§100.20. Providing Information to Advisory Boards for Certain Health-Related Programs.

(a) This section is promulgated under Section 51.2031(b), Occupations Code.

(b) The department will present the following documents, including any updates or revisions, to the advisory board for its input and recommendation:

(1) The penalty matrix for the profession to be included in the department's Enforcement Plan; and

(2) Criminal Conviction Guidelines (Guidelines for Applicants with Criminal Convictions) for the profession.

(c) The department will provide information regarding the general investigative, enforcement, or disciplinary procedures of the department or commission to the advisory board in the following manner:

(1) At advisory board meetings, the department will provide a report on recent enforcement activities, including:

(A) a brief description of final orders entered in enforcement cases; and

(B) statistics on complaints received, disposition of cases, and any sanctions or administrative penalties assessed;

(2) On request of the advisory board, the department will provide additional information:

(A) during the staff report portion of the advisory board meeting; or

(B) by placing a discussion item on the agenda for a future advisory board meeting; or

(3) The department may provide information directly to an individual member of the advisory board in response to a request from that member.

§100.30. Rules Regarding Certain Health-Related Programs.

(a) This section is promulgated under Section 51.2031(a-1) and (a-2), Occupations Code.

(b) The commission may not adopt a new rule relating to the scope of practice of or a health-related standard of care for a profession to which this section applies unless the rule has been proposed by the advisory board established for that profession.

(c) Under Section 51.2031(a-1) and (a-2), Occupations Code, the advisory board may propose a rule described by subsection (b) according to the following procedure:

(1) The advisory board, by a majority vote of the members present and voting at a meeting at which a quorum is present, shall either:

(A) recommend that the rule be published in the Texas Register for public comment; or

(B) if the rule has been published and after considering the public comments, make a recommendation to the commission concerning adoption of the rule;

(2) The rule must be within the commission's legal authority to adopt; and

(3) The department may make non-substantive, editorial changes to the rule as necessary.

(d) The commission shall either adopt the rule as proposed by the advisory board under subsection (c), with any non-substantive, editorial changes made by the department under subsection (c)(3), or return the rule to the advisory board for revision.

(e) This section expires September 1, 2019.

§100.40. Enforcement Procedures for Certain Health-Related Programs.

(a) The department will develop procedures to incorporate health-related expertise into the department's investigation and resolution of complaints.

(b) The department will seek input regarding the procedures developed under this section from each advisory board.

(c) The procedures developed under this section may include obtaining health-related expertise from one or more of the following sources:

(1) A current or former member of the advisory board for the profession;

(2) A department staff expert;

(3) An outside expert with relevant education, training, or experience;

(4) A former member of an enforcement, enforcement review, complaints, or complaint review committee for the profession at the Department of State Health Services; or

(5) A panel consisting of any combination of the individuals listed in paragraphs (1) - (4).

(d) Opinions or recommendations obtained under subsection (c) are not binding on the department or commission.

(e) The procedures developed under this section must include provisions to protect information that is confidential by law.

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 October 7, 2016.

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