TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 194. MEDICAL RADIOLOGIC TECHNOLOGY

SUBCHAPTER A. CERTIFICATE HOLDERS, NON-CERTIFIED TECHNICIANS, AND OTHER AUTHORIZED INDIVIDUALS OR ENTITIES

22 TAC §194.7

The Texas Medical Radiologic Technology Board proposes amendments to §194.7, concerning Biennial Renewal of Certificate or Placement on the Board's General Registry for Non-Certified Technicians Generally.

The amendment to §194.7, deletes language to subsection (c), related to continuing education requirements, so that the minimum requirements for formal hours no longer require live, instructor-led hours. The amendments will result in more efficiency while maintaining rigorous requirements ensuring current competency, by aligning the rules with the requirements set forth by the American Registry of Radiologic Technologists, which lack a live instruction requirement. Amendments are further made to subsection (c)(5), and make corrections to typographical errors.

Scott Freshour, General Counsel for the Board, has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing this proposal will be to align continuing education requirements with ARRT's requirements, thereby increasing efficiency for individuals subject to the rules, while maintaining minimum requirements necessary to ensure current and ongoing competency. Further benefits anticipated will be to eliminate possible confusion caused by typographical errors.

Pursuant to Texas 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 do not require an increase or decrease in fees paid to the agency;

(5) The proposed rules create a new regulation;

(6) The proposed rules limit or repeal an existing regulation;

(7) The proposed rules decrease the number of individuals subject to the rule's applicability; and

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

Scott Freshour has also determined that for each year of the first five years the section as proposed is in effect, there will be no fiscal implication to state or local government as a result of enforcing the section as proposed. There will be no effect to individuals required to comply with the rule as proposed. There will be no effect on small or micro businesses or rural communities.

Comments on the proposal may be submitted to Rita Chapin, P.O. Box 2018, Austin, Texas 78768-2018, or email comments to: rules.development@tmb.state.tx.us. A public hearing will be held at a later date.

The amendment is proposed under the authority of the Texas Occupations Code Annotated, §601.058, which provides authority for the Board to recommend rules to establish licensing and other fees and recommend rules necessary to administer and enforce this chapter. The amendment is further authorized under S.B. 674 (85th Legislature, R.S.).

No other statutes, articles or codes are affected by this proposal.

§194.7.Biennial Renewal of Certificate or Placement on the Board's General Registry for Non-Certified Technicians Generally.

(a) Temporary Certificates.

(1) A temporary certificate shall expire one year from the date of issue. A person whose temporary certificate has expired is not eligible to reapply for another temporary certificate.

(2) A temporary certificate is not subject to a renewal or extension for any reason.

(3) Persons who hold temporary certificates, either general or limited, are not subject to continuing education requirements set forth under subsection (c) of this section.

(b) General and Limited Certificates; Placement on the Board's General Registry for Non-Certified Technicians.

(1) MRTs and LMRTs certified and NCTs registered under the Act shall register biennially and pay a fee. A holder of a certificate or NCT general registration permit may, on notification from the board, renew an unexpired certificate or permit by submitting the required form and documents and by paying the required renewal fee to the board on or before the expiration date of the permit.

(2) The fee shall accompany the required form which legibly sets forth the certificate or permit holder's name, mailing address, business address, and other necessary information prescribed by the board. The certificate or permit holder must include with the required forms and fee documentation of continuing education completed during the previous two years to the date of renewal ("biennial renewal period").

(c) Continuing education requirements.

(1) Generally.

(A) MRT. As a prerequisite to the biennial registration of a certificate, a minimum of 24 hours of continuing education hours must be completed during each biennial renewal period. The continuing education must be completed in the following categories:

(i) At least 12 hours of the required number of hours must be satisfied by attendance and participation in formal[, instructor-led] courses that are designated for Category A or A+ credits of continuing education evaluated by an organization recognized by ARRT as a Recognized Continuing Education Evaluation Mechanism (RCEEM) or RCEEM+ during the biennial renewal period.

(ii) The remaining 12 credits for the biennial renewal period may be composed of self-study or courses not approved for formal CE, and shall be recorded in a manner that can be easily transmitted to the board upon request.

(iii) Any additional hours completed through self-study must be verifiable, through activities that include reading materials, audio materials, audiovisual materials, or a combination thereof.

(B) LMRT. As a prerequisite to the biennial registration of a limited certificate, a minimum of 18 hours of continuing education acceptable to the board must be completed during each biennial renewal period. The hours completed must be in the topics of general radiation health and safety or related to the categories of limited certificate held. The continuing education must be completed in the following categories:

(i) At least nine hours of the required number of hours must be satisfied by attendance and participation in formal[, instructor-led] courses that are designated for Category A or A+ credits of continuing education evaluated by an organization recognized by ARRT as a Recognized Continuing Education Evaluation Mechanism (RCEEM) or RCEEM+ during the biennial renewal period.

(ii) The remaining nine credits for the biennial renewal period may be composed of self-study or courses not approved for formal CE, and shall be recorded in a manner that can be easily transmitted to the board upon request.

(iii) Any additional hours completed through self-study must be verifiable, through activities that include reading materials, audio materials, audiovisual materials, or a combination thereof.

(C) An MRT or LMRT who also holds a current Texas license, registration, or certification in another health profession may satisfy the continuing education requirement for renewal of a certificate with hours counted toward renewal of the other license, registration, or certification, provided such hours meet all the requirements of this subsection.

(D) An MRT or LMRT who holds a current and active annual registration or credential card issued by ARRT indicating that the certificate holder is in good standing and not on probation satisfies the continuing education requirement for renewal of a general or limited certificate, provided the hours accepted by ARRT were completed during the certificate holder's biennial renewal period and meet or exceed the hour the requirements set out in this subsection. The board must be able to verify the status of the card presented by the certificate holder electronically or by other means acceptable to the board. The board may review documentation of the continuing education activities in accordance with paragraph (5) of this subsection.

(E) NCTs. As a prerequisite to the biennial registration of a general registration permit, the individual must complete a minimum of 12 hours of continuing education during each biennial renewal period. The continuing education must be completed in the following categories:

(i) At least six hours of the required number of hours must be satisfied by attendance and participation in formal[, instructor-led courses] that are designated for Category A or A+ credits of continuing education evaluated by an organization recognized by ARRT as a Recognized Continuing Education Evaluation Mechanism (RCEEM) or RCEEM+ during the biennial renewal period.

(ii) The remaining six credits for the biennial renewal period may be composed of self-study or courses not approved for formal CE, and shall be recorded in a manner that can be easily transmitted to the board upon request.

(iii) Any additional hours completed through independent self-study must be verifiable, through activities that include reading materials, audio materials, audiovisual materials, or a combination thereof.

(2) Content Requirements.

(A) At least 50% of the required number of hours must be activities which are directly related to the use and application of ionizing forms of radiation to produce diagnostic images and/or administer treatment to human beings for medical purposes. For the purpose of this section, directly related topics include, but are not limited to: radiation safety, radiation biology and radiation physics; anatomical positioning; radiographic exposure technique; radiological exposure technique; emerging imaging modality study; patient care associated with a radiologic procedure; radio pharmaceutics, pharmaceutics, and contrast media application; computer function and application in radiology; mammography applications; nuclear medicine application; and radiation therapy applications.

(B) No more than 50% of the required number of hours may be satisfied by completing or participating in learning activities which are related to the use and application of non-ionizing forms of radiation for medical purposes.

(C) No more than 50% of the required number of hours may be satisfied by completing or participating in learning activities which are indirectly related to radiologic technology. For the purpose of the section, indirectly related topics include, but are not limited to, patient care, computer science, computer literacy, introduction to computers or computer software, physics, human behavioral sciences, mathematics, communication skills, public speaking, technical writing, management, administration, accounting, ethics, adult education, medical sciences, and health sciences. Other courses may be accepted for credit provided there is a demonstrated benefit to patient care.

(3) Alternative Continuing Education Accepted by the Board. The additional activities for which continuing education credit will be awarded are as follows:

(A) successful completion of an entry-level or advanced-level examination previously passed in the same discipline of radiologic technology administered by or for the ARRT during the renewal period. The examinations shall be topics dealing with ionizing forms of radiation administered to human beings for medical purposes. Such successful completion shall be limited to not more than one-half of the continuing education hours required;

(B) successful completion or recertification in a cardiopulmonary resuscitation course, basic cardiac life support course, or advanced cardiac life support course during the continuing education period. Such successful completion or recertification shall be limited to not more than:

(i) three hours credit during a renewal period for a cardiopulmonary resuscitation course or basic cardiac life support course; or

(ii) 6 hours credit during a renewal period for an advanced cardiac life support course;

(C) attendance and participation in tumor conferences (limited to six hours), in-service education and training offered or sponsored by Joint Commission-accredited or Medicare certified hospitals, provided the education/training is properly documented and is related to the profession of radiologic technology;

(D) teaching in a program accredited by a regional accrediting organization such as the Southern Association of Colleges and Schools; or an institution accredited by JRCERT, JRCNMT, JTCCVT, CCE, ABHES, ASRT, professional organizations or associations, or a federal, state, or local governmental entity, with a limit of one contact hour of credit for each hour of instruction per topic item once during the continuing education reporting period for up to a total of 6 hours. No credit shall be given for teaching that is required as part of one's employment. Credit may be granted in direct, indirect or non-ionizing radiation based on the topic; or

(E) developing and publishing a manuscript of at least 1,000 words in length related to radiologic technology with a limit of six contact hours of credit during a continuing education period. Upon audit by the board, the certificate holder must submit a letter from the publisher indicating acceptance of the manuscript for publication or a copy of the published work. The date of publication will determine the continuing education period for which credit will be granted. Credit may be granted in direct, indirect or non-ionizing radiation based on the topic.

(4) Reporting Requirements. A certificate holder or NCT must report on the biennial registration form if she or he has completed the required continuing education during the previous renewal period.

(A) A certificate holder may carry forward continuing education credit hours that meet the requirements under this subsection and earned prior to the biennial registration renewal period which are in excess of the biennial hour requirement, and apply such hours to the subsequent renewal period requirements.

(i) For MRTs, a maximum of 48 total excess credit hours meeting the requirements under this subsection may be carried forward.

(ii) For LMRTs, a maximum of 24 hours meeting the requirements of this subsection may be carried forward. Excess continuing education credits may not be carried forward or applied to a report of continuing education more than two years beyond the date of the registration following the period during which the credits were earned.

(B) A NCT may carry forward continuing education credit hours that meet the requirements under this subsection and earned prior to the biennial registration renewal period which are in excess of the biennial hour requirement, and apply such hours to the subsequent renewal period requirements. A maximum of 12 total excess credit hours meeting the requirements under paragraph (3)(A) of this subsection may be carried forward. Excess continuing education credits may not be carried forward or applied to a report of continuing education more than two years beyond the date of the registration following the period during which the credits were earned.

(5) Exemptions.

(A) A [certificate] holder of a certificate or registration as a non-certified technician may request in writing an exemption for the following reasons, subject to the approval of the certification committee of the board:

(i) catastrophic illness;

(ii) military service of longer than one year's duration outside the United States;

(iii) residence of longer than one year's duration outside the United States; or

(iv) good cause shown on written application of the certificate holder that gives satisfactory evidence to the board that the certificate holder is unable to comply with the requirement for continuing medical education.

(B) An exception under paragraph (5) [(6)] of this subsection may not exceed one registration period, but may be renewed biennially, subject to the approval of the board.

(6) A certificate holder or NCT who is a military service member may request an extension of time, not to exceed two years, to complete any continuing education requirements.

(7) This subsection does not prevent the board from taking disciplinary action with respect to a certificate holder or an applicant for a certificate by requiring additional hours of continuing education or of specific course subjects.

(8) The board may require written verification of continuing education credits from any certificate holder within 30 days of request. Failure to provide such verification may result in disciplinary action by the board.

(9) Unless exempted under the terms of this subsection, a certificate holder or NCT's failure to obtain and timely report required hours of continuing education as required and provided for in this subsection shall result in the nonrenewal of the certificate until such time as the certificate holder obtains and reports the required continuing education hours; however, the executive director of the Medical board may issue to such a certificate holder a temporary certificate numbered so as to correspond to the nonrenewed certificate. Such a temporary certificate shall be issued at the direction of the executive director for a period of no longer than 90 days. A temporary certificate issued pursuant to this subsection may be issued to allow the certificate holder who has not obtained or timely reported the required number of hours an opportunity to correct any deficiency so as not to require termination of practice.

(10) Determination of contact hour credits. A contact hour shall be defined as 50 minutes of attendance and participation. One-half contact hour shall be defined as 30 minutes of attendance and participation during a 30-minute period.

(d) Criminal History Requirement for Registration Renewal.

(1) An applicant must submit a complete and legible set of fingerprints for purposes of performing a criminal history check of the applicant.

(2) The board may not renew the certificate or NCT general registration permit of a person who does not comply with the requirement of paragraph (1) of this subsection.

(3) A holder of a certificate or NCT general registration permit is not required to submit fingerprints under this section for the renewal of the certificate or permit if the holder has previously submitted fingerprints for the initial issuance of the certificate NCT general registration permit or as part of a prior renewal of a certificate or NCT general registration permit.

(e) Report of Impairment on Registration Form.

(1) A holder of a certificate or NCT general registration permit who reports an impairment that affects his or her ability to actively practice as a MRT, LMRT, or NCT shall be given written notice of the following:

(A) based on the individual's impairment, he or she may request:

(i) to be placed on retired status pursuant to §194.10 of this chapter (relating to Retired Certificate or NCT General Registration Permit);

(ii) to voluntarily surrender the certificate or NCT registration permit pursuant to §194.33 of this chapter (relating to Voluntary Relinquishment or Surrender of Certificate or Permit); or

(iii) to be referred to the Texas Physician Health Program pursuant to Chapter 180 of this title (relating to Texas Physician Health Program and Rehabilitation Orders); and

(B) that failure to respond to the written notice or otherwise not comply with paragraph (1) of this subsection within 45 days shall result in a referral to the board's investigation division for possible disciplinary action.

(2) The board shall provide written notice as described in paragraph (1) of subsection within 30 days of receipt of the certificate holder's registration form indicating the certificate holder's impairment.

(f) The board shall deny an application for renewal of a certificate upon notice of the certificate or NCT general registration permit holder's default of child support payments, as provided under Chapter 232 of the Texas Family Code, or default of a Texas Guaranteed Student Loan Corporation guaranteed student loan, as provided in the Texas Education Code, §57.491.

(g) The board shall deny an application for renewal of a certificate or NCT general registration permit or take and/or impose other disciplinary action against such an individual who falsifies an affidavit or otherwise submits false information to obtain renewal of a certificate, pursuant to the Act, §601.302.

(h) If the renewal fee and completed application form are not received on or before the expiration date of the certificate, the fees set forth in Chapter 175 of this title (relating to Fees and Penalties) shall apply.

(i) Except as otherwise provided, the board shall not waive fees or penalties.

(j) The board shall stagger biennial registration of certificate or NCT general registration permit holders proportionally on a periodic basis.

(k) A certificate or NCT general registration permit holder who engages in activities requiring a certificate or other authorization while in Texas, without an biennial registration permit for the current renewal period as provided for in the board rules has the same force and effect as and is subject to all penalties of practicing without a certificate or other required authorization.

(l) Expired Biennial Registration.

(1) Generally.

(A) If a certificate or NCT general registration permit holder's registration has been expired for less than one year, the certificate or permit holder may obtain a new registration by submitting to the board a completed registration application, and the registration and penalty fees, as set forth under Chapter 175 (relating to Fees and Penalties).

(B) If a certificate holder or NCT general registration permit holder's registration has been expired for one year or longer, the certificate or permit holder's certificate or permit will be automatically canceled, unless an investigation is pending, and the certificate or permit holder may not obtain a new registration.

(C) A person whose certificate or NCT general registration permit has expired may not engage in activities that require a certificate or permit until the certificate or permit has been renewed. Performing activities requiring a certificate or permit during the period in which registration has expired without obtaining a new registration for the current registration period has the same effect as, and is subject to all penalties of, practicing radiologic technology in violation of the Act.

(D) If a certificate or NCT general registration permit has been expired for one year or longer, it is considered to have been canceled, unless an investigation is pending. A new certificate or NCT general registration permit may be obtained by complying with the requirements and procedures for obtaining an original certificate or permit.

(2) Renewal for technologists on active military duty with expired certificate or NCT general registration permit. A holder of a certificate or NCT general registration permit that has been expired for longer than a year may file a complete application for another certificate or permit of the same type as that which expired.

(A) The application shall be on official board forms and be filed with the application and initial certification or NCT general registration permit fee.

(B) An applicant shall be entitled to a certificate or NCT general registration permit of the same type as that which expired based upon the applicant's previously accepted qualification and no further qualifications or examination shall be required.

(C) The application must include a copy of the official orders or other official military documentation showing that the holder was on active duty during any portion of the period for which the applicant was last certified or registered as an NCT with the board.

(D) An applicant for a different type of certificate than that which expired must meet the requirements of this chapter generally applicable to that type of certificate.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 23, 2018.

TRD-201801764

Scott Freshour

Interim Executive Director

Texas Medical Board

Earliest possible date of adoption: June 3, 2018

For further information, please call: (512) 305-7016


PART 14. TEXAS OPTOMETRY BOARD

CHAPTER 273. GENERAL RULES

22 TAC §273.8

The Texas Optometry Board proposes amendments to Rule §273.8 to define conditions that would prevent a renewal of a license, including the non payment of administrative penalties and the failure to comply with orders or agreements concerning disciplinary matters.

Chris Kloeris, executive director of the Texas Optometry Board, estimates that for the first five-year period the amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments.

Chris Kloeris also has determined that for each of the first five years the amendments are in effect, the public benefit anticipated is that disciplinary orders or agreements will be enforced by the Board.

It is anticipated that there will be no economic costs for the group affected by the amendment, licensees that are under a disciplinary order or agreement, since no additional fees or duties are imposed by the amendment. The amendment notifies this group of the consequences of failing to comply with previously imposed disciplinary conditions due and owing prior to license renewal. Complying with the disciplinary orders or agreements as required in the order or agreement removes the possibility that these licensees will incur economic costs. Requiring compliance with the disciplinary orders or agreements of an agency regulating health professionals is necessary to protect the health, safety, and welfare of the residents of this state.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS ON SMALL BUSINESSES AND RURAL COMMUNITIES

The agency licenses approximately 3,800 optometrists and therapeutic optometrists in Texas. A significant majority of licensees own or work in one or more of the 1,000 to 3,000 optometric practices which meet the definition of a small business. Some of these practices meet the definition of a micro business. Some of the practices are in rural communities. The agency does not license these practices. The projected economic impact of this rule amendment on these small businesses and rural communities will be neutral since a licensee complying with board disciplinary orders or agreements is not required by the amendment to pay any additional fees, incur any additional costs, or would be subjected to any restrictions on practice.

ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT

The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed rule does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore does not constitute a taking under Texas Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT

During the first five years that the proposed rule will be in effect, it is anticipated that the proposed rule will not create or eliminate a government program; implementation of the proposed rule will not require the creation of new employee position or the elimination of an existing employee position; implementation of the proposed rule will not require an increase or decrease in future legislative appropriations to the agency; the proposed rule will not require an increase or decrease in fees paid to the agency if licensees comply with disciplinary orders or agreements; the proposed rule does not create a new regulation; the proposed rule does not expand, limit, or repeal an existing regulation; the proposed rule may increase the number of individuals subject to the rule's applicability compared to the previous existing rule which did not include the failure to comply with a disciplinary order; and the proposed rule will not positively or adversely affect this state's economy.

Comments on the proposal may be submitted to Chris Kloeris, Executive Director, Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-3942. The deadline for furnishing comments is thirty days after publication in the Texas Register.

The amendment is proposed under the Texas Optometry Act, Texas Occupations Code, §§351.151, 351.301, 351.304, 351.501, 351.551. No other sections are affected by the amendments.

The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The agency interprets §§351.301 and 351.304 as setting the requirements for license renewal, and §§351.501 and 351.551, as authorizing the Board to impose disciplinary action including administrative penalties.

§273.8.Renewal of License.

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

(c) Outstanding Administrative Penalty or Failure to Comply with Board Condition.

(1) The Board may refuse to renew a license to a person who has:

(A) not paid an administrative penalty owed to the Board at the time of renewal, or

(B) not complied with a term or condition of a disciplinary order or agreement issued by the Board.

(2) The Board may refuse to renew a license, until such time as:

(A) every administrative penalty payable on or before the time of renewal is paid, or

(B) all terms or conditions of a disciplinary order or agreement issued by the Board are satisfied.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 17, 2018.

TRD-201801653

Chris Kloeris

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 3, 2018

For further information, please call: (512) 305-8500


CHAPTER 277. PRACTICE AND PROCEDURE

22 TAC §277.12

The Texas Optometry Board proposes new Rule §277.12 to implement Senate Bill 314, Regular Session, 85th Legislature, regarding disciplinary action for licensees disciplined in another state. The new rule also clarifies that the agency has disciplinary authority for violations of a disciplinary order or agreement issued by the agency. The new rule sets out the disciplinary authority of §351.501 of the Texas Optometry Act as amended by Senate Bill 314.

Chris Kloeris, executive director of the Texas Optometry Board, estimates that for the first five-year period the new rule is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the new rule.

Chris Kloeris also has determined that for each of the first five years the new rule is in effect, the public benefit anticipated is that licensees and the public will be on notice of what actions or the failures to act authorize the agency to take disciplinary action, including the failure to comply with disciplinary orders or agreements issued by the agency.

It is difficult to predict economic costs for licensees subject to the new rule. Only those licensees violating §351.501 or failing to comply with a disciplinary order or agreement issued by the agency pursuant to §351.501 could possibly be subject to an economic cost. For such a violation, the statute authorizes the agency to issue a range of sanctions from a letter of concern to the revocation of license, depending on the severity of conduct and the violation. The Optometry Act also authorizes fines and administrative penalties. The agency welcomes comments regarding quantifying economic costs. Requiring compliance with the Optometry Act and disciplinary orders or agreements of an agency regulating health professionals is necessary to protect the health, safety, and welfare of the residents of this state.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS ON SMALL BUSINESSES AND RURAL COMMUNITIES

The agency licenses approximately 3,800 optometrists and therapeutic optometrists in Texas. A significant majority of licensees own or work in one or more of the 1,000 to 3,000 optometric practices which meet the definition of a small business. Some of these practices meet the definition of a micro business. Some of these practices are in rural communities. The agency does not license these practices. The projected economic impact of this new rule on the small businesses and rural communities is projected to be neutral based on the analysis in the preceding paragraph. Any possible cost would only affect the specific small business or micro business where the owner or an employee has not complied with the Texas Optometry Act.

ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT

The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed rule does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore does not constitute a taking under Texas Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT

Sections of the new rule are proposed in response to the requirements of Senate Bill 314, Regular Session, 85th Legislature. During the first five years that the proposed rule will be in effect, it is anticipated that the proposed rule will not create or eliminate a government program; implementation of the proposed rule will not require the creation of new employee position or the elimination of an existing employee position; implementation of the proposed rule will not require an increase or decrease in future legislative appropriations to the agency; and the proposed rule will not require an increase or decrease in fees paid to the agency if licensees comply with the requirements of the Optometry Act, disciplinary orders or agreements. The proposed rule is a new regulation based in part on statutory language in §351.501 as amended by Senate Bill 314. In addition, the new rule does regulate the consequences of not complying with an order or agreement issued by the agency. The proposed rule does not expand, limit, or repeal an existing regulation. During the first five years that the proposed rule will be in effect, it is anticipated that the proposed rule will not positively or adversely affect this state's economy.

Comments on the proposal may be submitted to Chris Kloeris, Executive Director, Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-3942. The deadline for furnishing comments is thirty days after publication in the Texas Register.

The new rule is proposed under the Texas Optometry Act, Texas Occupations Code, §351.151 and §351.501. No other sections are affected by the new rule.

The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The agency interprets §351.501 as amended by Senate Bill 314, Regular Session, 85th Legislature, to authorize the agency to issue disciplinary orders and agreements.

§277.12.Denial Of License And Disciplinary Action By Board.

(a) Denial of License. The Board may refuse to issue a license to an applicant, if the Board determines that:

(1) the applicant is guilty of fraud, deceit, dishonesty, or misrepresentation in the practice of optometry or in seeking admission to that practice;

(2) the applicant is unfit or incompetent by reason of negligence;

(3) the applicant has been convicted of a misdemeanor involving moral turpitude or a felony;

(4) the applicant has developed an incapacity that prevents or could prevent the applicant from practicing optometry or therapeutic optometry with reasonable skill, competence, and safety to the public;

(5) the applicant has wilfully or repeatedly violated this chapter or a board rule adopted under this chapter;

(6) the applicant has acted to deceive, defraud, or harm the public;

(7) the applicant is guilty of gross incompetence in the practice of optometry or therapeutic optometry;

(8) the applicant has engaged in a pattern of practice or other behavior demonstrating a wilful provision of substandard care;

(9) the applicant has committed an act of sexual abuse, misconduct, or exploitation with a patient or has otherwise unethically or immorally abused the doctor-patient relationship;

(10) the applicant has prescribed, sold, administered, distributed, or given a drug legally classified as a controlled substance or as an addictive or dangerous drug for other than an accepted diagnostic or therapeutic purpose;

(11) the applicant has failed to report to the Board the relocation of the applicant's office not later than the 30th day after the date of relocation, whether in or out of this state;

(12) the applicant's violation of a law of this state, other than Texas Occupations Code Chapter 351, or a rule of another licensing board in this state, or of a statute or rule of another state if the violation constitutes a violation of the laws of this state or a board rule; or

(13) the applicant has violated the provisions of a disciplinary order or agreement issued by the Board.

(b) Disciplinary Action. The Board may revoke or suspend a license, place on probation a license holder whose license has been suspended, impose a fine, impose a stipulation, limitation, or condition relating to continued practice, including conditioning continued practice on counseling or additional education, or reprimand a license holder if the Board determines that:

(1) the license holder is guilty of fraud, deceit, dishonesty, or misrepresentation in the practice of optometry or therapeutic optometry or in seeking admission to that practice;

(2) the license holder is unfit or incompetent by reason of negligence;

(3) the license holder has been convicted of a misdemeanor involving moral turpitude or a felony;

(4) the license holder has developed an incapacity that prevents or could prevent the license holder from practicing optometry or therapeutic optometry with reasonable skill, competence, and safety to the public;

(5) the license holder has directly or indirectly employed, hired, procured, or induced a person to practice optometry or therapeutic optometry in this state without a license;

(6) the license holder has directly or indirectly aided or abetted an unlicensed person in the practice of optometry or therapeutic optometry;

(7) the license holder has placed the holder's license at the disposal or service of, including lending, leasing, or renting to, a person not licensed to practice optometry or therapeutic optometry in this state;

(8) the license holder has wilfully or repeatedly violated this chapter or a board rule adopted under this chapter;

(9) the license holder has wilfully or repeatedly represented to a member of the public that the license holder is authorized or competent to cure or treat an eye disease beyond the authorization granted by this chapter;

(10) the license holder has had the right to practice optometry or therapeutic optometry suspended or revoked by a federal agency for a cause that the board believes warrants that action;

(11) the license holder has acted to deceive, defraud, or harm the public;

(12) the license holder is guilty of gross incompetence in the practice of optometry or therapeutic optometry;

(13) the license holder has engaged in a pattern of practice or other behavior demonstrating a wilful provision of substandard care;

(14) the license holder has committed an act of sexual abuse, misconduct, or exploitation with a patient or has otherwise unethically or immorally abused the doctor-patient relationship;

(15) the license holder has prescribed, sold, administered, distributed, or given a drug legally classified as a controlled substance or as an addictive or dangerous drug for other than an accepted diagnostic or therapeutic purpose;

(16) the license holder has failed to report to the board the relocation of the applicant's or license holder's office not later than the 30th day after the date of relocation, whether in or out of this state;

(17) the license holder has practiced or attempted to practice optometry while the license holder's license was suspended;

(18) the applicant's violation of a law of this state, other than Texas Occupations Code Chapter 351, or a rule of another licensing board in this state, or of a statute or rule of another state if the violation constitutes a violation of the laws of this state or a board rule; or

(19) the applicant has violated the provisions of a disciplinary order or agreement issued by the Board.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 17, 2018.

TRD-201801654

Chris Kloeris

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 3, 2018

For further information, please call: (512) 305-8500


PART 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

CHAPTER 501. RULES OF PROFESSIONAL CONDUCT

SUBCHAPTER D. RESPONSIBILITIES TO THE PUBLIC

22 TAC §501.83

The Texas State Board of Public Accountancy (Board) proposes an amendment to §501.83, concerning Firm Names.

Background, Justification and Summary

The amendment to §501.83(a)(4)(B) deletes a reference to repealed §513.2 and replaces it with the correct reference: §901.355 of the Act, because the Board no longer registers foreign CPAs but issues a certificate based upon reciprocity.

Fiscal Note

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment is in effect, there will be no additional estimated cost to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit Cost Note

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be a correct citation to an existing law.

There will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses, rural communities or micro-businesses because the amendment does not impose any duties or obligations upon small businesses, rural communities or micro-businesses, therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis is not required.

Government Growth Impact Statement

Mr. Treacy has determined that for the first five-year period the amendment is in effect, the proposed rule: does not create or eliminate a government program; does not create or eliminate employee positions; does not increase or decrease future legislative appropriations to the Board; does not increase or decrease fees paid to the Board; does not create a new regulation; does not expand, limit or repeal an existing regulation; does not increase or decrease the number of individuals subject to the proposed rule's applicability; and does not positively or adversely affect the state's economy.

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on June 4, 2018.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small businesses; if the proposed rule is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the rule, describe and estimate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Board may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute under which the proposed rule is to be adopted, finally describe how the health, safety, environmental and economic welfare of the state will be impacted by the various proposed methods. See Texas Government Code, §2006.002(c).

Statutory Authority

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§501.83.Firm Names.

(a) General rules applicable to all firms:

(1) A firm name may not contain words, abbreviations or other language that are misleading to the public, or that may cause confusion to the public as to the legal form or ownership of the firm.

(2) A firm licensed by the board may not conduct business, perform or offer to perform services for or provide products to a client under a name other than the name in which the firm is licensed.

(3) A word, abbreviation or other language is presumed to be misleading if it:

(A) is a trade name or assumed name that does not comply with paragraph (4)(A) or (B) of this subsection;

(B) states or implies the quality of services offered, special expertise, expectation as to outcomes or favorable results, or geographic area of service;

(C) includes the name of a non-owner of the firm;

(D) includes the name of a non-CPA, except as provided in paragraph (4)(B) of this subsection;

(E) states or implies educational or professional attainment not supported in fact;

(F) states or implies licensing recognition for the firm or any of its owners not supported in fact;

(G) includes a designation such as "and company," "associates," "and associates," "group" or abbreviations thereof or similar designations implying that the firm has more than one employed licensee unless there are at least two employed licensees involved in the practice. Independent contractors are not considered employees under this subsection; or

(H) includes the designation "company" when it is a one licensee sole proprietorship.

(4) A word, abbreviation or other language is presumed not misleading if it:

(A) is the name, surname, or initials of one or more current or former CPA owners of the firm, its predecessor firm or successor firm;

(B) is the name, surname, or initials of one or more current or former foreign practitioner owners of the firm, its predecessor firm or successor firm who are or would have been eligible to practice public accountancy in this state pursuant to §901.355 of the Act (relating to Registration for Certain Foreign Applicants) [under §513.2 of this title (relating to Application for Registration of Foreign Practitioners)];

(C) indicates the legal organization of the firm; or

(D) states or implies a limitation on the type of service offered by the firm, such as "tax," "audit" or "investment advisory services," provided the firm in fact principally limits its practice to the type of service indicated in the name.

(5) The board may place conditions on the licensing of a firm in order to ensure compliance with the provisions of this section.

(b) Additional Requirements Based on Legal Form or Ownership.

(1) The names of a corporation, professional corporation, limited liability partnership, professional limited liability company or other similar legal forms of ownership must contain the form of ownership or an abbreviation thereof, such as "Inc.," "P.C.," "L.L.P." or "P.L.L.C."; except that a limited liability partnership organized before September 1, 1993 is not required to utilize the words "limited liability partnership" or any abbreviation thereof.

(2) Sole Proprietorships:

(A) The name of a firm that is a sole proprietor must contain the surname of the sole proprietor as it appears on the individual license issued to the sole proprietor by the board.

(B) A partner surviving the death of all other partners may continue to practice under the partnership name for up to two years after becoming a sole proprietor, notwithstanding subsection (d) of this section.

(c) The name of any current or former owner may not be used in a firm name during any period when such owner is prohibited from practicing public accountancy and prohibited from using the title "certified public accountant," "public accountant" or any abbreviation thereof, unless specifically permitted by the board.

(d) A firm licensed by the board is required to report to the board any change in the legal organization of the firm and amend the firm name to comply with this section regarding firm names for the new organization within thirty days of the effective date of such change.

(e) This section regarding firm names does not affect firms licensed by the board prior to the effective date of this section, but does apply to any change in legal organization or name that occurs after the effective date of this section. Nothing in this subsection prohibits the board from placing conditions on the licensing of a firm pursuant to subsection (a)(5) of this section at the time of renewal of the firm license.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 18, 2018.

TRD-201801678

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: June 3, 2018

For further information, please call: (512) 305-7842