Proposed Administrative Rules

Chapter 111. Speech-Language Pathologists and Audiologists Program

Proposal Filed: January 12, 2018 – Published in the Texas Register : January 26, 2018

Deadline for Public Comment: February 26, 2018

Underlined text is new language.

[ Strike-thru text ] is deleted language.

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 111, Subchapter V, §111.212, regarding the Speech-Language Pathologists and Audiologists Program.

JUSTIFICATION AND EXPLANATION OF THE RULES

The existing rules under 16 TAC Chapter 111 implement Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists. The statute and rules govern the licensing and regulation of speech-language pathologists and audiologists. Existing rule 16 TAC §111.212 establishes the requirements for the use of telehealth by speech-language pathologists. The proposed rule amends §111.212(h), which requires in-person initial contact with clients.

The proposed rule is a result of changes in regulation involving telepractice and telehealth, specifically related to in-person initial contact. According to the U.S. Federal Trade Commission staff, of the 19 states and the District of Columbia that have telepractice laws, rules, or policies for speech-language pathology or audiology, Texas is one of only three states that has an in-person initial contact or evaluation requirement. (Source: Letter dated November 29, 2016, from the U.S. Federal Trade Commission (FTC) staff to the Delaware Board of Speech/Language Pathologists, Audiologists, and Hearing Aid Dispensers (DE Board) regarding the DE Board’s proposed telepractice rules.)

In the FTC letter, the FTC staff discussed various regulations and developments in the use of telepractice to deliver speech-language pathology and audiology services, and the potential increase in competition and access to services through telepractice. The FTC staff encouraged the DE Board to reconsider its proposed telepractice rules by allowing licensees to determine whether telepractice is appropriate for an initial evaluation and by eliminating the requirement that all initial evaluations must be in-person.

In addition, the Texas Legislature enacted S.B. 1107, 85th Legislature, Regular Session (2017). This bill, in part, addressed provisions in the Texas Medical Board’s statute and rules regarding telemedicine and face-to-face contact with patients. The bill also included provisions regarding telehealth, including provisions that the standard of care for services provided by telehealth is the same as the standard of care for services provided in-person, and that a regulatory agency cannot adopt rules that would impose a higher standard of care for telehealth services than for services provided in-person.

The Department viewed these changes and others as guidance in reviewing its existing telehealth/telepractice rules. The Department is amending §111.212 due to changes in regulation regarding telehealth/telepractice related to in-person initial contact.

The proposed rule is necessary to eliminate a restriction on the use of telehealth by speech-language pathologists. Specifically, the proposed rule eliminates the requirement that the initial contact with a client must be in-person at the same physical location to determine the client’s candidacy for telehealth before any services can be provided by telehealth. The proposed rule eliminates an unnecessary restriction that may be viewed as anti-competitive or as an obstacle to obtaining or providing speech-language pathology services.

The Department staff made a presentation at the Speech-Language Pathologists and Audiologists Advisory Board (Advisory Board) meeting on June 30, 2017, regarding the trends in regulation involving telehealth/telepractice and in-person initial contact with clients. Draft options for the proposed rules were presented to and discussed by the Advisory Board at its meetings on November 15, 2017, and January 4, 2018. The proposed rule reflects those discussions with Advisory Board members and Department staff and reflects the option selected by the Advisory Board. At its meeting on January 4, 2018, the Advisory Board voted and recommended that the proposed rule be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rule amends §111.212, Requirements for the Use of Telehealth by Speech-Language Pathologists. The proposed rule amends subsection (h) by eliminating the requirement that a speech-language pathologist’s initial contact with a client must be at the same physical location to determine the client’s candidacy for telehealth before any services can be provided by telehealth. The proposed rule allows a speech-language pathologist’s initial contact with a client to be either at the same physical location or through telehealth/telepractice, as determined appropriate by the licensed speech-language pathologist.

The language in existing subsection (h) related to determining the client’s candidacy for telehealth has been modified and relocated to new subsection (i). New subsection (i) provides that the speech-language pathologist shall consider relevant factors including the client’s behavioral, physical, and cognitive abilities in determining the appropriateness of providing services via telehealth/telepractice. This determination is not tied to the initial contact with the client.

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 rule is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed amendments.

Mr. Francis has determined that for each year of the first five years the proposed rule is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed amendments.

Mr. Francis has determined that for each year of the first five years the proposed rule is in effect, the proposed rule does not have foreseeable implications relating to costs or revenues of state or local governments as a result of enforcing or administering the proposed amendment.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rule 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 also has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be the elimination of a restriction on the use of telehealth, which may make it easier for qualified, licensed individuals to provide speech-language pathology services remotely. It could also benefit clients, especially those who do not live close to licensed speech-language pathologists, saving the clients time and travel costs associated with attending an initial visit at the same physical location as the licensed speech-language pathologist.

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 rule is in effect, there are no anticipated economic costs to persons licensed as speech-language pathologists in Texas. Whether the initial visit is performed at the same physical location or performed through telehealth/telepractice, there is no appreciable economic cost to licensed individuals 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 rule.

Since 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 rule does 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 rule. 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. One rule subsection has been amended and separated into two rule subsections.

(6) The proposed rule does expand, limit, or repeal an existing regulation. The proposed rule eliminates a restriction on the use of telehealth and allows for the use of telehealth/telepractice by speech-language pathologists for initial contacts with clients.

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

STATUTORY AUTHORITY

The amendments to an existing rule is proposed under Texas Occupations Code, Chapters 51 and 401, 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 401. No other statutes, articles, or codes are affected by the proposal.

§111.212. Requirements for the Use of Telehealth by Speech-Language Pathologists.

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

(h) The initial contact between a licensed speech-language pathologist and client may [ shall ] be at the same physical location or through telehealth/telepractice, as determined appropriate by the licensed speech-language pathologist [ to assess the client's candidacy for telehealth, including behavioral, physical, and cognitive abilities to participate in services provided via telecommunications prior to the client receiving telehealth services ].

(i) A provider shall consider relevant factors including the client’s behavioral, physical, and cognitive abilities in determining the appropriateness of providing services via telehealth/telepractice.

(j) [ (i) ] A provider shall be aware of the client or consultant level of comfort with the technology being used as part of the telehealth services and adjust their practice to maximize the client or consultant level of comfort.

(k) [ (j) ] When a provider collaborates with a consultant from another state in which the telepractice services are delivered, the consultant in the state in which the client receives services shall be the primary care provider for the client.

(l) [ (k) ] As pertaining to liability and malpractice issues, a provider shall be held to the same standards of practice as if the telehealth services were provided in person.

(m) [ (l) ] A provider shall be sensitive to cultural and linguistic variables that affect the identification, assessment, treatment, and management of the clients.

(n) [ (m) ] Upon request, a provider shall submit to the department data which evaluates effectiveness of services provided via telehealth including, but not limited to, outcome measures.

(o) [ (n) ] Telehealth providers shall comply with all laws, rules, and regulations governing the maintenance of client records, including client confidentiality requirements, regardless of the state where the records of any client within this state are maintained.

(p) [ (o) ] Notification of telehealth services shall be provided to the client, the guardian, the caregiver, and the multi-disciplinary team, if appropriate. The notification shall include, but not be limited to: the right to refuse telehealth services, options for service delivery, and instructions on filing and resolving complaints.

REVIEW BY AGENCY COUNSEL

This agency hereby certifies that the proposal 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 January 12, 2018.

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