Texas Register Volume: 47 Number: 10

The Governor

Proclamation 41-3885

The Governor issued Proclamation 41-3885 to renew the disaster proclamation for all counties in Texas in response to the ongoing COVID-19 pandemic.

OVERVIEW

In accordance with the authority vested by Section 418.014 of the Texas Government Code, the Governor hereby renews the disaster proclamation for all counties in Texas.

BACKGROUND AND JUSTIFICATION

Pursuant to Section 418.017, the Governor authorizes the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.

Pursuant to Section 418.016, any regulatory statute prescribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforcement of any state statute or administrative rule regarding contracting or procurement would impede any state agency’s emergency response that is necessary to cope with this declared disaster, the Governor hereby suspends such statutes and rules for the duration of this declared disaster for that limited purpose.

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Texas Board of Chiropractic Examiners

Proposed Rules Re:

New 22 TAC §79.5, describing prohibited conduct including associating with an unlicensed individual.

CHAPTER 79. UNPROFESSIONAL CONDUCT
22 TAC §79.5

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §79.5, Associating with an Unlicensed Individual. Texas Occupations Code §201.5025(a)(5 – 7) (Prohibited Practices by Chiropractor or License Applicant) forbids a licensee from associating with an individual whose license to practice chiropractic has been suspended or revoked in any jurisdiction. This language does not explicitly prohibit a licensee from associating with an individual who surrendered a license to the Board in lieu of disciplinary action, although the Board has that authority implicitly through other statutes and Board rules.

BACKGROUND AND JUSTIFICATION

The Board offers licensees who have been arrested for serious violent or financial crimes the option of immediately surrendering their licenses to the Board instead of going through the time and expense of a revocation hearing at the State Office of Administrative Hearings. The Board believes this option better fulfills its duty to protect the public than an administrative hearing by quickly removing from the ranks of licensed chiropractors an individual who has shown to be a danger to patients.

Occupations Code §201.5025(a)(5 – 7) prohibits licensees from associating with, in any manner, individuals who have had their license to practice chiropractic suspended or revoked in any jurisdiction. This proposed rule makes explicit that the prohibition includes individuals who have surrendered their licenses in lieu of discipline.

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Amending 22 TAC §80.1 to simplify the the process of Board notification within the complaint process.

CHAPTER 80. COMPLAINTS
22 TAC §80.1

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to 22 TAC §80.1 (Duty to Respond to Complaint). The purpose is to simplify the process of Board notification to an individual of a complaint filed against him.

BACKGROUND AND JUSTIFICATION

This amendment simply removes email as one of the two formal methods the Board must use to notify an individual of a complaint filed against him. The proposed amendment keeps the procedural requirement that the Board must notify an individual of a complaint by registered mail.

The Board’s Executive Director, Patrick Fortner, has determined that for the first five-year period the amended rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the amendment as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendment will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

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Amending 22 TAC §80.3 to include a new subsection that makes it a violation of Board rules if an individual fails to comply with any term of an agreed order approved by the Board.

CHAPTER 80. COMPLAINTS
22 TAC §80.3

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to 22 TAC §80.3 (Disciplinary Guidelines) by adding new subsection (m). The new subsection (m) will make it a violation of Board rules if an individual fails to comply with any term of an agreed order approved by the Board.

BACKGROUND AND JUSTIFICATION

The Board’s Executive Director, Patrick Fortner, has determined that for the first five-year period the amended rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the amendment as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendment will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

Mr. Fortner has determined that, for each year of the first five years the amended rule will be in effect, the public benefit is to make respondents who voluntarily sign agreed orders with the Board to be liable for failing to honor that agreement.

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Amending 22 TAC §81.2 to remove the requirement that a notice of hearing and formal complaint be sent to a respondent by registered or certified mail.

CHAPTER 81. ENFORCEMENT ACTIONS AND HEARINGS
22 TAC §81.2

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to 22 TAC §81.2 (Notice for Enforcement and Other Hearings) by removing the requirement that, before a hearing at the State Office of Administrative Hearings (SOAH), a notice of hearing and formal complaint be sent to a respondent by registered or certified mail.

BACKGROUND AND JUSTIFICATION

Under the Board’s current rules, the Board uses certified mail to initially notify a respondent of a complaint by sending a certified notice of complaint to the respondent’s physical address on file with the Board (22 TAC §80.1), which gives notice to the respondent of the allegations against him. During complaint investigations, respondents (and their attorneys, if any) usually formally communicate with Board investigators and legal staff using email. All Board licensees are required to maintain a current physical and email address on file with the Board (22 TAC §72.13). Additionally, as of March 2020, SOAH requires all parties in a contested case to use the eFileTexas electronic filing system for judicial filings, including for notices of hearing and formal complaint; certified mail is no longer a procedural requirement.

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New 22 TAC §82.4 to to permit agency employees to contribute earned hours to an established family leave pool.

CHAPTER 82. INTERNAL BOARD PROCEDURES
22 TAC §82.4

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §82.4 (Family Leave) to comply with the requirements of Government Code §§661.021 – 661.028.

BACKGROUND AND JUSTIFICATION

The Board’s Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the repeal as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed rule will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

Mr. Fortner has determined that, for each year of the first five years the proposed rule will be in effect, the public benefit is to permit agency employees to contribute earned hours to a family leave pool.

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State Board of Dental Examiners

Proposed Rules Re:

Amending 22 TAC §108.7 to allow for the provision of teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care.

CHAPTER 108. PROFESSIONAL CONDUCT
SUBCHAPTER A. PROFESSIONAL RESPONSIBILITY
22 TAC §108.7

OVERVIEW

The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §108.7, concerning the minimum standard of care. House Bill 2056 was passed during the 87th Texas Legislature, Regular Session (2021). The bill amended Chapter 111, Texas Occupations Code, which allows dental health professionals to provide teledentistry dental services to patients. The bill’s intent is to eliminate barriers pertaining to access to care, and allow dental health professionals to treat patients without having an in-person visit if the standard of care is met.

This proposed amendment changes §108.7(3) – (4) to allow for the provision of teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. A dentist must ask the patient to come into the office for a physical examination if the diagnosis or treatment utilizing teledentistry is not adequate or consistent with the standard of care.

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New 22 TAC §108.16, describing professional standards when providing teledentistry dental services.

CHAPTER 108. PROFESSIONAL CONDUCT
SUBCHAPTER A. PROFESSIONAL RESPONSIBILITY
22 TAC §108.16

OVERVIEW

The State Board of Dental Examiners (Board) proposes new rule 22 TAC §108.16, concerning teledentistry. The proposed rule pertains to standards for the provision of teledentistry dental services as set out in House Bill 2056 of the 87th Texas Legislature, Regular Session (2021), and Chapter 111, Texas Occupations Code.

BACKGROUND AND JUSTIFICATION

This rule was initially proposed at the September 10, 2021 board meeting and published in the November 12, 2021 issue of the Texas Register. During the public comment period, the Board received several stakeholder comments pertaining to the reference of §108.7 in §108.16(e)(2)(A). As a result of stakeholder feedback, the Board voted to amend §108.7 at the February 18, 2022 board meeting, and also voted to re-propose §108.16 with no changes. This will allow the Regulatory Compliance Division to review both §108.7 and §108.16 concurrently.

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Withdrawn Rules Re:

Withdrawing 22 TAC §108.16, which concerned professional conduct for teledentistry services.

CHAPTER 108. PROFESSIONAL CONDUCT
SUBCHAPTER A. PROFESSIONAL RESPONSIBILITY
22 TAC §108.16

The State Board of Dental Examiners withdraws proposed new §108.16 which appeared in the November 12, 2021, issue of the Texas Register (46 Tex Reg 7705).

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Adopted Rules Re:

Amending 22 TAC §107.204to establish the timing requirements for the issuance of remedial plans to resolve the investigation of a complaint.

CHAPTER 107. DENTAL BOARD PROCEDURES
SUBCHAPTER C. DISPOSITION OF COMPLAINTS
22 TAC §107.204

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §107.204, concerning the issuance of remedial plans to resolve the investigation of a complaint. The adopted amendment establishes when multiple remedial plans may be issued to a licensee and when a remedial plan may be removed from the Board’s public website. The rule is adopted in accordance with Senate Bill 1534 of the 87th Texas Legislature, Regular Session (2021), and Chapter 263, Texas Occupations Code. The rule is adopted without changes to the text as published in the December 24, 2021, issue of the Texas Register (46 Tex Reg 8878) and will not be republished.

BACKGROUND AND JUSTIFICATION

This rule is adopted under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety.

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Department of State Health Services

Proposed Rules Re:

Repealing 25 TAC §157.41, which concerns Automated External Defibrillators for Public Access Defibrillation.

CHAPTER 157. EMERGENCY MEDICAL CARE
SUBCHAPTER C. EMERGENCY MEDICAL SERVICES TRAINING AND COURSE APPROVAL
25 TAC §157.41

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes the repeal of §157.41, concerning Automated External Defibrillators for Public Access Defibrillation.

BACKGROUND AND JUSTIFICATION

The proposed repeal of §157.41 is necessary to comply with Senate Bill (S.B.) 199, 87th Legislature, Regular Session, 2021, related to the usage and education requirement for automated external defibrillators for public access defibrillation. S.B. 199 repealed Texas Health and Safety Code §779.002 (Automated External Defibrillators), which removed the rulemaking authority from the Executive Commissioner concerning training requirements and amended Texas Education Code §21.0541 to revise the requirement for the State Board for Educator Certification to adopt rules for automated external defibrillator training.

This rule was reviewed by the Governor’s EMS and Trauma Advisory Council (as required by Texas Health and Safety Code §773.012) in a public meeting on September 17, 2021. No comments were received from the advisory council.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §157.41 removes the rule from 25 TAC Chapter 157, Subchapter C.

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Texas Health and Human Services Commission

Proposed Rule Review Re:

Reviewing Title 26, Part 1 Chapter 279, Contracting to Provide Emergency Response Services

OVERVIEW

The Texas Health and Human Services Commission (HHSC) proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 26, Part 1, of the Texas Administrative Code:

Chapter 279, Contracting to Provide Emergency Response Services

• Subchapter A, Introduction
• Subchapter B, Contracting Requirements
• Subchapter C, Staff Requirements
• Subchapter D, Service Delivery
• Subchapter E, Claim Payments and Documentation

BACKGROUND AND JUSTIFICATION

This review is conducted in accordance with the requirements of Texas Government Code §2001.039, which requires state agencies, every four years, to assess whether the initial reasons for adopting a rule continue to exist.

Comments on the review of Chapter 279, Contracting to Provide Emergency Response Services, may be submitted to HHSC Rules Coordination Office, Mail Code 4102, P.O. Box 13247, Austin, Texas 78711-3247, or by email to HHSRulesCoordinationOffice@hhs.texas.gov. The deadline for comments is on or before 5:00 p.m. central time on the 31st day after the date this notice is published in the Texas Register.

The text of the rule sections being reviewed will not be published, but may be found in Title 26, Part 1, of the Texas Administrative Code or on the Secretary of State’s website at https://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac_view=4&ti=26&pt=1&ch=279

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In Addition Re:

Public Notice: State Plan on Aging for Federal Fiscal Years 2023 – 2025

OVERVIEW

The Texas Health and Human Services Commission announces a 14-day public comment period effective from March 11, 2022, through March 25, 2022, for the proposed State Plan on Aging for Federal Fiscal Years 2023 – 2025.

DETAILS

The Texas Health and Human Services Commission will post the proposed State Plan on Aging on the Texas Health and Human Services Commission, Area Agencies on Aging website at: https://www.hhs.texas.gov/news.

Written comments and questions may be submitted by email or U.S. mail to:

Email

Texas_State_Plan_on_Aging@hhsc.state.tx.us

U.S. Mail

Texas Health and Human Services Commission

Attention: AES Program Policy

909 West 45th Street

Mail Code: 2115

Austin, Texas 78751

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Texas Board of Nursing

Adopted Rules Re:

Amending 22 TAC §213.10 to include the Texas Nurse Portal as a new avenue to provide notice to applicants and licensees in circumstances where state law does not specifically require notice to be sent via first class, registered, or certified mail.

CHAPTER 213. PRACTICE AND PROCEDURE
22 TAC §213.10

OVERVIEW

The Texas Board of Nursing (Board) adopts amendments to 22 Texas Administrative Code §213.10, relating to Notice and Service, without changes to the proposed text published in the January 7, 2022, issue of the Texas Register (47 Tex Reg 11) and will not be republished.

BACKGROUND AND JUSTIFICATION

The Texas Nurse Portal (Portal), which was launched by the Board on June 15, 2020, is a paperless, confidential, and secure system that allows individuals to apply for nurse licensure by examination and endorsement and renew their licenses. The use of the Portal has moved the Board toward a paperless work flow in the Board’s offices and allows the Board to communicate with applicants and licensees directly through the Portal. This online communication is often more efficient and reliable than more traditional methods, such as certified, registered, or first class mail.

The adopted amendments add the Portal as a new avenue to provide notice to applicants and licensees in circumstances where state law does not specifically require notice to be sent via first class, registered, or certified mail. In those cases, Board notice will continue to be given as specified in existing subsections (a) – (e) of the rule. Notices sent via the Portal may include mandatory notices required by the Nursing Practice Act and the Nurse Licensure Compact for multistate privilege licensure, as well as courtesy notices and routine communication provided by the Board. Further, the Board has already adopted rules incorporating the use of the Portal into its communication with applicants and licensees as it relates to the change of an applicant or licensee’s name and/or address (46 Tex Reg 555). The adopted amendments are consistent with the Board’s uniform transition to a more efficient online licensure system.

Adopted §213.10(f) provides that, notwithstanding (a) – (e) of the section, notice required by a rule adopted by the Interstate Commission of Nurse Licensure Compact Administrators will be considered effective and service will be considered complete when made electronically through the Texas Nurse Portal accessible through the Board’s website. Additionally, adopted §213.10(g) provides that, notwithstanding (a) – (e) of the section, notice not specifically required by state law to be provided through first class, certified, or registered mail, return receipt requested, may be made electronically through the Texas Nurse Portal accessible through the Board’s website and will be considered effective and complete when made through this method. Subsections (a) – (e) contain provisions relate to notice provided via registered or certified mail and will not apply to notice provided under the adopted amendments.

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Amending 22 TAC §217.5 to eliminate the need for a military spouse applicant to submit proof of residency in Texas in order to obtain single state licensure and practice in Texas.

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE
22 TAC §217.5

OVERVIEW

The Texas Board of Nursing (Board) adopts amendments to 22 Texas Administrative Code §217.5, relating to Temporary License and Endorsement, without changes to the proposed text published in the January 7, 2022, issue of the Texas Register (47 Tex Reg 12) and will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are being adopted under the authority of the Occupations Code §301.151 and House Bill (HB) 139, effective September 1, 2021. HB 139, enacted during the 87th Regular Legislative Session, requires a state agency that issues a license that has a residency requirement for license eligibility to adopt rules regarding the documentation necessary for a military spouse applicant to establish residency, including by providing to the agency a copy of the permanent change of station order for the military service member to whom the spouse is married.

Current Board Rule 217.5(h) includes in its eligibility requirements for a military spouse applicant proof of residency in Texas. However, proof of residency in Texas is not necessary for the issuance of single state licensure for these applicants. A military spouse applicant wishing to obtain a multistate license under the Nurse Licensure Compact must declare Texas as his/her home state on the application and submit proof of residency required under the Occupations Code Chapter 304 and related compact rules. However, a military spouse applicant is not required to obtain a multistate license to practice nursing in the State of Texas; a military spouse applicant may practice nursing in Texas by obtaining a single state license, which does not require proof of residency. In an effort to conform to the requirements of HB 139, remove any unnecessary impediments to single state licensure in Texas for military spouse applicants, and clarify the applicability of the existing rule, the adopted amendments eliminate the language in subsection (h)(1)(B) relating to proof of residency.

Section 217.5(h) relates to out-of-state licensure of military spouse applicants. The adopted amendments eliminate the need for a military spouse applicant to submit proof of residency in Texas in order to obtain single state licensure and practice in Texas.

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Texas State Board of Pharmacy

Adopted Rules Re:

Amending 22 TAC §283.4 to specify that a person may not have previously failed the NAPLEX or Texas Pharmacy Jurisprudence Examination to be designated an extended-intern as a resident in a residency program accredited by the American Society of Health-System Pharmacists.

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS
22 TAC §283.4

OVERVIEW

The Texas State Board of Pharmacy adopts amendments to §283.4, concerning Internship Requirements. These amendments are adopted without changes to the proposed text as published in the December 24, 2021, issue of the Texas Register (46 Tex Reg 8880). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments specify that a person may not have previously failed the NAPLEX or Texas Pharmacy Jurisprudence Examination to be designated an extended-intern as a resident in a residency program accredited by the American Society of Health-System Pharmacists and correct grammatical errors.

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Amending 22 TAC §291.29 to update requirements for prescriptions issued as a result of teledentistry dental services or telemedicine medical services.

CHAPTER 291. PHARMACIES
SUBCHAPTER A. ALL CLASSES OF PHARMACIES
22 TAC §291.29

OVERVIEW

The Texas State Board of Pharmacy adopts amendments to §291.29, concerning Professional Responsibility of Pharmacists. These amendments are adopted without changes to the proposed text as published in the December 24, 2021, issue of the Texas Register (46 Tex Reg 8883). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments establish the determination of a valid prescription issued as a result of teledentistry dental services, in accordance with House Bill 2056, or telemedicine medical services.

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Amending 22 TAC §291.34 to extend the time period for a pharmacist to dispense prescription drug orders for Schedule II controlled substances issued by certain practitioners.

CHAPTER 291. PHARMACIES
SUBCHAPTER B. COMMUNITY PHARMACY (CLASS A)
22 TAC §291.34

OVERVIEW

The Texas State Board of Pharmacy adopts amendments to §291.34, concerning Records. These amendments are adopted without changes to the proposed text as published in the December 24, 2021, issue of the Texas Register (46 Tex Reg 8885). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments extend the time period for a pharmacist to dispense prescription drug orders for Schedule II controlled substances issued by a practitioner in another state to the end of the thirtieth day after the date the prescription is issued to be consistent with federal law and correct a citation reference.