Proposed Rules Title 16

TITLE 16. ECONOMIC REGULATION

PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION

CHAPTER 50. ALCOHOLIC BEVERAGE SELLER SERVER AND DELIVERY DRIVER TRAINING

The Texas Alcoholic Beverage Commission (TABC) proposes amendments to rules 16 TAC §§50.4, 50.15, 50.17, 50.19 - 50.20, 50.23, and 50.31, relating to Alcoholic Beverage Seller Server and Delivery Driver Training. The proposed amendments are necessary to ensure the rules accurately reflect their scope and use proper grammar. The amendment to §50.23 removes the word "Location" from the rule title because the rule does not actually address location changes for seller server schools. The remaining amendments to §§50.4, 50.15, 50.17, 50.19 - 50.20, and 50.31 simply insert or delete commas and hyphens, all of which the agency consider to be non-substantive changes. Simultaneous with this proposal, TABC is also reviewing 16 TAC §§50.1, 50.3 - 50.5, 50.8, 50.12 - 50.20, 50.23, and 50.26 - 50.33 under Texas Government Code §2001.039. That rule review is also in this edition of the Texas Register.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Ashleigh Jons, Deputy Director of Training, has determined that during each year of the first five years the proposed amendments are in effect, there will be no fiscal impact on state and local governments as a result of enforcing or administering the amended rules. Ms. Jons made this determination because the proposed amendments do not add to or decrease state revenues or expenditures and because local governments are not involved in enforcing or complying with the amended rules. Ms. Jons also does not anticipate a measurable effect on local employment or a local economy as a result of this proposal.

PUBLIC BENEFIT AND COST NOTE. For each year of the first five years the proposed amendments are in effect, Ms. Jons expects that the amended rules will have the public benefit of clearly conveying the amended rules' requirements related to seller server training. Ms. Jons does not expect the proposed amendments will impose economic costs on persons required to comply with the amended rules.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. TABC has determined that the proposed amendments will not have an adverse economic impact on small or micro businesses, or on rural communities. As a result, and in accordance with Texas Government Code §2006.002(c), TABC is not required to prepare a regulatory flexibility analysis.

GOVERNMENT GROWTH IMPACT STATEMENT. TABC has determined that for each year of the first five years that the proposed amendments are in effect, they:

- will not create or eliminate a government program;

- will not require the creation of new employee positions or the elimination of existing employee positions;

- will not require an increase or decrease in future legislative appropriations to the agency;

- will not require an increase or decrease in fees paid to the agency;

- will not create a new regulation;

- will not expand, limit, or repeal an existing regulation;

- will not increase or decrease the number of individuals subject to the rules' applicability; and

- will not positively or adversely affect the Texas economy.

TAKINGS IMPACT ASSESSMENT. TABC has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action. As a result, this proposal does not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

REQUEST FOR PUBLIC COMMENT. TABC will consider any written comments on the proposed amendments that are received by TABC no later than 5:00 p.m., central time, on May 14, 2023. Send your comments to rules@tabc.texas.gov or to the Office of General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711-3127. TABC staff will hold a public hearing to receive oral comments on the proposed amendments on April 27, 2023, at 10:00 a.m. THIS HEARING WILL BE HELD BY VIDEOCONFERENCE ONLY. Interested persons should visit the TABC's public website prior to the meeting date to receive further instructions or call Kelly Johnson, Legal Assistant, at (512) 206-3367.

SUBCHAPTER B. MANDATORY CURRICULUM AND COURSE OF INSTRUCTION

16 TAC §50.4

STATUTORY AUTHORITY. The amendments are proposed pursuant to TABC's rulemaking authority under §5.31 and §106.14(b) of the Texas Alcoholic Beverage Code. Section 5.31 provides that TABC may prescribe and publish rules necessary to carry out the provisions of the Texas Alcoholic Beverage Code. Section 106.14(b) provides that TABC shall adopt rules or policies establishing the minimum requirements for approved seller training programs.

CROSS-REFERENCE TO STATUTE. The proposed amendments implement §106.14 of the Texas Alcoholic Beverage Code.

§50.4.Commission Approval of Classroom-Based Course of Instruction.

(a) (No change.)

(b) All classroom-based training materials and courses of instruction must be submitted to the commission for approval.

(1) (No change.)

(2) The 120-minute [~~120 minute~~] requirement excludes time taken for breaks and the administration of the Commission Standard Competence Test.

(3) The 120-minute [~~120 minute~~] requirement is based on a 6th grade comprehension and reading skills level.

(4) (No change.)

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 March 28, 2023.

TRD-202301197

James Person

General Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: May 14, 2023

For further information, please call: (512) 206-3230

SUBCHAPTER C. ALCOHOLIC BEVERAGE SELLER SERVER AND DELIVERY DRIVER TRAINING

16 TAC §§50.15, 50.17, 50.19, 50.20, 50.23

The amendments are proposed pursuant to TABC's rulemaking authority under §5.31 and §106.14(b) of the Texas Alcoholic Beverage Code. Section 5.31 provides that TABC may prescribe and publish rules necessary to carry out the provisions of the Texas Alcoholic Beverage Code. Section 106.14(b) provides that TABC shall adopt rules or policies establishing the minimum requirements for approved seller training programs.

§50.15.Application for Primary Classroom-Based Seller Server School Certificate.

(a) (No change.)

(b) Disclosure of Owners, Officers, Directors, Managers, and Instructors.

(1) - (5) (No change.)

§50.17.Application for Primary Internet-Based Seller Server School Certificate.

(a) - (k) (No change.)

(l) A primary internet-based training school is required to obtain:

(1) a branch mobile application training school certificate for each delivery platform that is under common ownership with the designated primary internet-based [~~internet based~~] program. This includes, but is not limited to, programs designed for specific mobile devices or custom programming as a delivery platform for the mandatory curriculum and internet-based [~~internet based~~] testing; or

(2) (No change.)

(m) (No change.)

§50.19.Application for Primary In-House Seller Server School Certificate.

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

(1) An applicant whose owners, officers, directors, and managers are an exact match to those previously provided to the commission in connection with a license or permit currently held by the applicant is exempt from the requirements of paragraphs (2), (3) and (4) of this subsection. However, the applicant must identify the license or permit application where the information requested in those paragraphs can be found.

(2) - (6) (No change.)

(d) An applicant for a primary in-house seller server school must designate:

(1) a certified trainer responsible for the oversight, operation, training, and compliance at the seller server school; and

(2) (No change.)

(e) - (g) (No change.)

§50.20.Application for Branch In-House Seller Server School Certificate.

(a) - (e) (No change.)

(f) The application for a branch classroom-based in-house seller server school certificate must designate:

(1) a certified trainer responsible for the oversight, operation, training, and compliance at the branch classroom-based in-house seller server school; and

(2) (No change.)

(g) A personal history sheet must be completed and submitted with the application for each trainer and responsible individual[,] if the individual has not previously provided a personal history sheet with the original or renewal application for the primary in-house seller server school.

(h) - (r) (No change.)

(s) The application for a branch internet-based or mobile application in-house seller server school certificate must designate:

(1) a certified trainer responsible for the oversight, operation, training, and compliance at the branch in-house seller server school; and

(2) (No change.)

(t) A personal history sheet must be completed and submitted with the application for each trainer and responsible individual[,] if the individual has not previously provided a personal history sheet with the original or renewal application for the primary in-house seller server school.

(u) - (y) (No change.)

§50.23.Change of Ownership [~~or Location~~].

(a) A change of ownership is any agreement to transfer ownership or control of a school. A change of control is presumed if:

(1) - (2) (No change.)

(3) there is a change in directors, officers, shareholders, or other governing body that results in significant changes in operations, management, or key instructors.

(b) - (f) (No change.)

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 March 28, 2023.

TRD-202301198

James Person

General Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: May 14, 2023

For further information, please call: (512) 206-3230

SUBCHAPTER E. SELLER SERVER CERTIFICATES

16 TAC §50.31

§50.31.Revocation.

(a) The commission may revoke a Seller Server certificate under the conditions set forth in this section.

(1) (No change.)

(2) If the holder of a Seller Server Certificate sells or serves an alcoholic beverage to a minor or intoxicated person a second time within a 12-month [~~12 month~~] period, the commission may revoke the certificate. The certificate holder cannot be recertified for a period of 90 days. Recertification requires completing a course of instruction offered by a certified school and passing the Commission Standard Competence Test.

(3) If the holder of a Seller Server Certificate sells or serves an alcoholic beverage to a minor or intoxicated person a third time within a 12-month [~~12 month~~] period, the commission may revoke the certificate. The certificate holder cannot be recertified for a period of one year. Recertification requires completing a course of instruction offered by a certified school and passing the Commission Standard Competence Test.

(4) - (5) (No change.)

(b) (No change.)

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 March 28, 2023.

TRD-202301199

James Person

General Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: May 14, 2023

For further information, please call: (512) 206-3230

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 115. MIDWIVES

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC) at Chapter 115, §§115.1, 115.4, 115.5, 115.13 - 115.15, 115.20, 115.21, 115.23, 115.25, 115.70, 115.80, 115.100, and 115.120, the repeal of §§115.2, 115.16 and 115.121 and new rules §§115.2, 115.12, 115.16, 115.22, and 115.121; regarding the Midwives program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 115 implement Texas Occupations Code, Chapter 203, Midwives.

The proposed rules implement changes recommended by Department staff as a result of the four-year rule review conducted under Texas Government Code §2001.039. The proposed rules update requirements relating to approval of basic midwifery education courses, preceptor supervision of student clinical experience, informed client choice and disclosure statements, and retired midwife licenses. The proposed rules also make updates to reflect current Department procedures and remove obsolete or unnecessary language.

The Notice of Intent to Review for Chapter 115 was published in the October 9, 2020, issue of the Texas Register (45 TexReg 7281). The public comment period closed on November 9, 2020. At its meeting on March 3, 2021, the Texas Commission of Licensing and Regulation (Commission) readopted Chapter 115 in its entirety without changes. The readoption notice was published in the March 26, 2021, issue of the Texas Register (46 TexReg 2050). In response to the Notice of Intent to Review for Chapter 115 that was published, the Department received comments from one interested party requesting rule changes that would not be possible without statutory changes. Therefore, the proposed rules do not include any changes in response to public comments, and all the changes are based on recommendations by Department staff.

The proposed rules were presented to and discussed by the Midwives Advisory Board at its meeting on March 29, 2023. The Advisory Board made a change to proposed §115.13(a)(3)(B) by adding "and passing" to clarify that the course and exam must be passed. The Advisory Board voted and recommended that the proposed rules with changes be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §115.1, Definitions, by changing the term "approved midwifery education courses" to "basic midwifery education course" and updating its definition to provide clarity and consistency with Occupations Code §203.151; removing the definition for "Code" because the term is not used elsewhere in the rule chapter; adding a definition for "compensation" to provide clarity; adding a definition for "CPR certification" to streamline multiple references throughout the chapter; adding a definition for "direct supervision" to provide clarity; adding a definition for the acronym "MANA" to streamline multiple references to the Midwives Alliance of North America; adding a definition for the acronym "MEAC" to streamline multiple references to the Midwifery Education Accreditation Council; adding a definition for the acronym "NARM" to streamline multiple references to the North American Registry of Midwives; adding a definition for "preceptor" to provide clarity; removing the definition of "Program" because the term is not used elsewhere in the rule chapter; updating the definition of "retired midwife" to provide clarity and remove the age requirement; correcting a rule reference in the definition of "standing delegation orders"; adding a definition for "student" to provide clarity; and renumbering the remaining definitions accordingly.

The proposed rules repeal current §115.2 and replace it with new §115.2, License Required, to prohibit the unlicensed practice of midwifery.

The proposed rules amend §115.4, Advisory Board Membership, by amending paragraph (1) to provide consistency with Occupations Code §203.052.

The proposed rules amend §115.5, "Terms; Vacancies", by amending subsections (a) and (b) to provide consistency with Occupations Code §203.055.

The proposed rules add new §115.12, General Application Requirements, to streamline requirements for all applications submitted to the Department; add new subsection (a) consisting of language relocated from current §115.13(a) and (a)(1); and add new subsection (b) to require that original or certified copies of documents must be provided upon request by the Department.

The proposed rules amend §115.13, Initial Application for Licensure, by relocating language from subsections (a) and (a)(1) to proposed new §115.12(a); removing subsections (a)(1)(A) through (a)(1)(E), which consist of application details that can instead be addressed in the application forms approved by the Department; updating subsection (a)(2) to provide clarity and correct grammar; relocating and reorganizing the language in current subsection (a)(2) to become new subsection (a)(3); relabeling current subsection (a)(3) to become new subsection (a)(4) and removing the language that repeats the proposed new definition for "CPR certification" in §115.1; relabeling current subsection (a)(4) to become new subsection (a)(5) and adding language to allow the Department to approve a certification that is equivalent to the certification in neonatal resuscitation from the American Academy of Pediatrics; relabeling current subsection (a)(5) to become new subsection (a)(6) and reorganizing its language for clarity; relabeling current subsection (a)(6) to become new subsection (a)(7) and removing unnecessary language; relabeling current subsection (a)(7) to become new subsection (a)(8) and rephrasing its language for clarity and consistency; rephrasing subsection (b) for clarity and consistency; and creating new subsection (f) consisting of language relocated from current §115.2(b). The Advisory Board made a change to subsection (a)(3)(B) by adding "and passing" to clarify that the course and exam must be passed.

The proposed rules amend §115.14, License Renewal, by adding to subsection (a) the word "midwife" to clarify the section's applicability to renewal of a midwife license; removing from subsection (a)(3) language that repeats the proposed new definition for "CPR certification" in §115.1; and adding new subsection (e) to provide that each applicant for renewal of a midwife license must successfully pass a criminal history background check.

The proposed rules amend §115.15, Late Renewal, by rephrasing for clarity and adding references to other Department rules applicable to late renewals.

The proposed rules repeal current §115.16 and replace it with new §115.16, Retired Voluntary Charity Care Status License, consisting of subsection (a) to explain the applicability of the section; subsection (b) to provide the eligibility requirements for a retired voluntary charity care status license; subsection (c) to provide the requirements for an initial application for a voluntary charity care status license; subsection (d) to provide the limitations on the practice of a person holding a retired voluntary charity care status license; subsection (e) to detail the actions for which a person holding a retired voluntary charity care status license will be subject to disciplinary action; subsection (f) to provide for the two-year license term of a retired voluntary charity care status license; subsection (g) to provide the renewal application requirements, the procedures for late renewal, and the prohibition on unlicensed activity for a voluntary charity care status license; and subsection (h) to provide the requirements for a person who holds a retired voluntary charity care status license and wants to return to active status.

The proposed rules amend §115.20, Basic Midwifery Education, by amending the section title for clarity; rephrasing and restructuring the rule language to remove the need for subsection labels; relocating from current subsection (a) to new paragraph (1) the requirement for a course to have a course administrator and site in Texas; relabeling current subsection (b)(2) to become new paragraph (2) and rephrasing its language for clarity; relabeling current subsection (b)(3) to become new paragraph (3) and replacing the names of entities with their corresponding acronyms defined in §115.1; relabeling current subsection (b)(4) to become new paragraph (4) and rephrasing its language for clarity; relabeling current subsection (b)(5) to become new paragraph (5) and rephrasing its language for clarity; relabeling current subsection (b)(6) to become new paragraph (6) and amending its language to provide consistency with the clinical experience requirements for certification by the North American Registry of Midwives (NARM); relabeling current subsection (b)(7) to become new paragraph (7) and removing unnecessary language that repeats the new definition for "preceptor" in §115.1; relabeling current subsection (c) to become new paragraph (8), rephrasing its language for clarity, and removing the language that repeats the new definition for "CPR certification" in §115.1.

The proposed rules amend §115.21, Education Course Approval, by amending the section title for clarity and consistency; rephrasing subsection (a)(1) for clarity and consistency; modifying subsection (a)(1)(D) to require that the financial statement or balance sheet must demonstrate the ability to provide refunds to any students who enroll and removing the requirement to disclose any bankruptcy within the last five years; in subsection (a)(1)(E), adding the requirement for written policies to include entrance requirements, a list of all fees, and the notice required by Occupations Code §53.152 and removing requirements for language and accessibility covered by other state and federal laws; in subsection (a)(2), changing the time period for retention of student files from five years to "three years after the student is no longer enrolled in the course" to provide a more definite time period, clarifying that student files must include CPR certification and progression of course work; amending subsection (a)(3) to clarify the process for initial course approval; rephrasing subsections (a)(4) through (a)(6) for clarity; amending subsection (b) to clarify the approval of courses accredited by MEAC; amending subsection (c) to clarify the duration of course approval and the process for obtaining a new approval period; amending subsection (d) to require a substantive change in a course to be approved before the change is implemented; and adding new subsection (e) to allow courses to accept transfer hours from other courses and clinical hours earned under a NARM-certified preceptor.

The proposed rules add new §115.22, Preceptor Supervisory Responsibilities, consisting of new subsection (a) to provide the requirements relating to clinical experience activities performed by a student, including direct supervision by a preceptor and informed consent by the client; new subsection (b) to clarify that the student is not practicing midwifery; and new subsection (c) to provide that a licensed midwife acting as a preceptor is responsible for the actions of the student.

The proposed rules amend §115.23, Jurisprudence Examination, by adding new subsection (d) to address administration of the examination, examination fees, reexamination, and notice of examination results, as required by Occupations Code §203.2555(b).

The proposed rules amend §115.25, Continuing Education, by rephrasing and reorganizing for clarity and removing accessibility requirements covered by other state and federal laws.

The proposed rules amend §115.70, Standards of Conduct, by removing the language in current paragraph (1)(L), which authorizes administrative action due to "a lack of personal or professional character in the practice of midwifery" because the standard is vague and subjective; renumbering the remaining provisions in paragraph (1) accordingly; and updating paragraph (3) to clarify that course approval may be suspended or revoked, add loss of MEAC accreditation as a reason for course suspension or revocation, and make cleanup changes for clarity.

The proposed rules amend §115.80, Fees, by updating the names of fees for clarity and consistency and reducing the retired voluntary charity care status license fees in paragraphs (4) and (5) from $275 to $0.

The proposed rules amend §115.100, Standards for the Practice of Midwifery in Texas, by making cleanup changes to subsections (a) and (c) for clarity and consistency.

The proposed rules amend §115.120, Newborn Screening, to clarify the requirements relating to a midwife who chooses to collect blood specimens for newborn screening tests, including the required training and submission of the appropriate form to the Department, and removing unnecessary language.

The proposed rules repeal current §115.121 and replace with new §115.121, Informed Choice and Disclosure Statement, by removing unnecessary language that merely repeats Occupations Code §203.351; adding new subsection (a) to require a midwife to use the form prescribed by the Department; adding new subsection (b) to require a midwife to provide the content of the form to a prospective client in both oral and written form before providing any midwifery service; and adding new subsection (c) to require a student performing clinical experience activities to first obtain the informed consent required by proposed new §115.22.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state or local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules 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. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be providing the rules with increased clarity and organization to ensure midwives meet the minimum licensing requirements to obtain or renew their licenses; allowing additional paths of reciprocity by allowing the transfer of hours from an out-of-state school or preceptor; and the outlining of the preceptor supervisory responsibilities.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. 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

The proposed rules do 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 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 require an increase or decrease in fees paid to the agency. The proposed rules eliminate the license renewal and reinstatement fees for retired midwives performing voluntary charity care.

5. The proposed rules do not create a new regulation.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules expand certain rules to clarify requirements relating to preceptor supervisory responsibilities, applications for retired voluntary charity care status licenses, and the submission of original or certified copies of documents, when required.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.

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

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Shamica Mason, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

16 TAC §§115.1, 115.2, 115.4, 115.5, 115.12 - 115.16, 115.20 - 115.23, 115.25, 115.70, 115.80, 115.100, 115.120, 115.121

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 203, which authorize the Texas Commission of Licensing and Regulation, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department. The proposed rules are also proposed under Texas Occupations Code, Chapter 112, which requires the adoption of rules providing for reduced fees and continuing education requirements for a retired health care practitioner whose only practice is voluntary charity care.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 203, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed rules.

§115.1.Definitions.

The following words and terms when used in this chapter [~~shall~~ ] have the following meaning unless the context clearly indicates otherwise.

(1) - (3) (No change.)

(4) Basic [~~Approved~~] midwifery education course [~~courses~~]--A course [~~The basic midwifery education courses~~] approved by the department to fulfill the education requirement for obtaining an initial midwife license.

~~[(5) Code--Texas Health and Safety Code.]~~

(5) [~~(6)~~] Collaboration--The process in which a midwife and a physician or another licensed health care professional of a different profession jointly manage the care of a woman or newborn according to a mutually agreed-upon plan of care.

(6) [~~(7)~~] Commission--The Texas Commission of Licensing and Regulation.

(7) Compensation--Direct or indirect payment of anything of monetary value, except payment or reimbursement of reasonable, necessary, and actual travel and related expenses.

(8) (No change.)

(9) CPR certification--Official documentation of successful completion of a course in cardiopulmonary resuscitation issued by:

(A) the American Heart Association, for health care providers;

(B) the Red Cross, for the professional rescuer;

(D) any other provider of a CPR course for health care providers currently accepted by the Department of State Health Services' Office of EMS/Trauma Systems Coordination.

(10) [~~(9)~~] Department--The Texas Department of Licensing and Regulation.

(11) Direct supervision--Real-time, in-person observation and guidance by a preceptor who is physically present and immediately available to provide any necessary assistance and personally respond to any emergency.

(12) [~~(10)~~] Executive director--The executive director of the department.

(13) [~~(11)~~] Health authority--A physician who administers state and local laws regulating public health under the Health and Safety Code, Chapter 121, Subchapter B.

(14) [~~(12)~~] Local health unit--A division of a municipality or county government that provides limited public health services as provided by the Health and Safety Code, §121.004.

(15) MANA--The Midwives Alliance of North America.

(16) MEAC--The Midwifery Education Accreditation Council.

(17) NARM--The North American Registry of Midwives.

(18) [~~(13)~~] Newborn care--The care of a child for the first six weeks of the child's life.

(19) [~~(14)~~] Normal childbirth--The labor and vaginal delivery at or close to term (37 up to 42 weeks) of a pregnant woman whose assessment reveals no abnormality or signs or symptoms of complications.

(20) [~~(15)~~] Physician--A physician licensed to practice medicine in Texas by the Texas Medical Board.

(21) [~~(16)~~] Postpartum care--The care of a woman for the first six weeks after the woman has given birth.

(22) Preceptor--an individual who provides direct supervision of a student and is:

(A) a midwife licensed in Texas;

(B) a certified nurse-midwife, as defined in the Act; or

~~[(17) Program--The department's midwifery program.]~~

(23) [~~(18)~~] Public health district--A district created under the Health and Safety Code, Chapter 121, Subchapter E.

(24) [~~(19)~~] Referral--The process by which a midwife directs the client to a physician or another licensed health care professional who has current obstetric or pediatric knowledge and who is working under supervision and delegation of a physician.

(25) [~~(20)~~] Retired midwife--A person holding a retired voluntary charity care status license under §115.16. [~~midwife licensed in Texas who is over the age of 55 and not currently employed in a health care field.~~]

(26) [~~(21)~~] Standing delegation orders--Written instructions, orders, rules, regulations or procedures prepared by a physician and designated for a patient population, and delineating under what set of conditions and circumstances actions should be instituted, as described in the rules of the Texas Medical Board in 22 Texas Administrative Code, Chapter 193 (relating to Standing Delegation Orders) [~~and §115.111 of this title (relating to Coordinating Care with Other Health Care Providers)~~].

(27) Student--A person performing activities under a basic midwifery education course or a preceptorship to fulfill the requirements for a midwife license or certification by NARM.

(28) [~~(22)~~] Transfer--The process by which a midwife relinquishes care of the client for pregnancy, labor, delivery, or postpartum care or care of the newborn to a physician or another licensed health care professional who has current obstetric or pediatric knowledge and who is working under the supervision and delegation of a physician.

(29) [~~(23)~~] Voluntary charity care--Midwifery care provided without compensation and with no expectation of compensation.

§115.2.License Required.

A person may not practice midwifery unless the person holds a license issued under the Act.

§115.4.Advisory Board Membership.

The Midwives Advisory Board consists of nine members appointed by the presiding officer of the commission, with the approval of the commission as follows:

(1) five licensed midwife members each of whom has at least three years' experience in the practice of midwifery;

(2) - (4) (No change.)

§115.5.Terms; Vacancies.

(a) Members of the advisory board serve staggered six-year terms. The terms of three members expire [~~expiring~~] on January 31st of each odd-numbered year.

(b) If a vacancy occurs on the board during a member’s term, the presiding officer of the commission, with the commission's approval, must [~~shall~~] appoint a replacement who meets the qualifications for the vacant position to serve for the remainder of the term.

§115.12.General Application Requirements.

(a) Unless otherwise indicated, all applications, required information, and documentation of credentials must be submitted on department-approved forms and in the manner prescribed by the department.

(b) Applicants must submit original or certified copies of documents if requested by the department.

§115.13.Initial Application for Licensure.

(a) Initial licensure. [~~Unless otherwise indicated, an applicant must submit all required information and documentation of credentials on official department-approved forms.~~] An individual may apply for licensure as a midwife at any time during the year by submitting the following to the department:

(1) a completed application; [~~on a department-approved form which shall contain:~~]

~~[(A) specific information regarding personal data, social security number, birth date, other licenses held, and misdemeanor or felony convictions;]~~

~~[(B) the date of the application;]~~

~~[(C) a statement that the applicant has read the Act and these rules and agrees to abide by them;]~~

[(D) a statement that the information in the application is truthful and that the applicant understands that providing false and misleading information on items which are material in determining the applicant's qualifications may result in the voiding of the application, or denial or the revocation of any license issued; and]

~~[(E) any other information required by the department.]~~

(2) proof of successful [~~satisfactory~~] completion of a continuing education course covering the current Texas Midwifery Basic Information and Instructor [~~Instructors~~] Manual;[~~, and:~~]

[(A) satisfactory completion of a mandatory basic midwifery education course approved by the department and the North American Registry of Midwives (NARM) exam or any other comprehensive exam approved by the department;]

~~[(B) Certified Professional Midwife (CPM) certification by NARM; or]~~

[(C) satisfactory completion of a basic midwifery education course accredited by the Midwifery Education Accreditation Council (MEAC), and the North American Registry of Midwives (NARM) exam, or any other comprehensive exam approved by the department.]

(3) proof of one of the following:

(A) Certified Professional Midwife certification by NARM; or

(B) successful completion and passing of:

(i) a basic midwifery education course; and

(ii) the NARM exam or any other comprehensive exam approved by the department;

(4) [~~(3)~~] proof of current CPR [~~cardiopulmonary resuscitation (CPR)~~] certification; [for health care providers by the American Heart Association; equivalent certification for the professional rescuer from the Red Cross; equivalent certification for healthcare and professional rescuer from the National Safety Council; or equivalent certification issued by any provider of CPR certification for health care providers currently accepted by the Department of State Health Service's Office of EMS/Trauma Systems Coordination;]

(5) [~~(4)~~] proof of current certification in [~~for~~] neonatal resuscitation, §§1 - 4, from the American Academy of Pediatrics or an equivalent certification approved by the department;

(6) [~~(5)~~] proof of one of the following:

(A) satisfactory completion of training in the collection of newborn screening specimens; or

(B) an established relationship with another qualified and appropriately credentialed health care provider who has agreed to collect newborn screening specimens on behalf of the applicant;

(7) [~~(6)~~] the [~~a nonrefundable~~] fee required under §115.80; and

(8) [~~(7)~~] proof of passing the jurisprudence examination approved by the department within[~~. The jurisprudence examination must have been taken no more than~~] one year prior to the date of application.

(b) Initial licensure after interim of more than four years. An application for [~~A midwife seeking~~] initial licensure submitted more than [~~who has not become licensed within~~] four years after the applicant’s completion of [~~completing~~] a basic midwifery education course [~~approved by the department or accredited by MEAC shall in addition~~] must also include [~~provide~~] proof of completion of [~~having completed~~] at least 40 [~~contact~~] hours of [~~approved midwifery~~] continuing education within the year preceding the application, which must include [~~shall be based upon~~] a review of:

(1) the current Texas Midwifery Basic Information and Instructor [~~Instructors~~] Manual; and

(2) the current MANA [~~Midwives Alliance of North America (MANA)~~] Core Competencies and Standards ofPractice.

(f) An initial midwife license is valid from the date of issuance until March 1 of the second calendar year following the calendar year in which it is issued.

§115.14.License Renewal.

(a) A midwife license may be renewed for a two-year period by submitting to the department:

(1) - (2) (No change.)

(3) proof of [a] current CPR certification; [~~for health care providers from one of the following:~~]

~~[(A) the American Heart Association;]~~

~~[(B) equivalent certification for the professional rescuer from the Red Cross;]~~

~~[(C) equivalent certification for healthcare and professional rescuer from the National Safety Council; or]~~

[(D) equivalent certification issued by any provider of CPR certification for health care providers currently accepted by the Department of State Health Services' Office of EMS/Trauma Systems Coordination;]

(4) - (7) (No change.)

(b) - (d) (No change.)

(e) An individual applying for renewal of a midwife license must successfully pass a criminal history background check.

§115.15.Late Renewal.

Late license renewal. A midwife whose license has expired [~~who fails to apply for license renewal by March 1 of the end of a renewal period in which the midwife is currently licensed,~~] may apply for late license renewal in accordance with the department’s procedural rules at 16 TAC §60.31 and §60.83 [~~on or before March 1 of the following year~~]. Applications for late license renewal must include the following:

(1) each of the items required for timely renewal;and

(2) the [~~a nonrefundable late renewal~~] fee required under §115.80.

§115.16.Retired Voluntary Charity Care Status License.

(a) Applicability. This section implements Texas Occupations Code, Chapter 112. This section applies to a person who holds a midwife license issued by the department.

(b) Eligibility. To be eligible for a retired voluntary charity care status license, the person must:

(1) hold an active midwife license issued by the department;

(2) not have any pending or current disciplinary actions against the person or the person’s license; and

(3) not be employed, under contract, or otherwise engaged in the practice of midwifery for compensation.

(1) submit a completed application on a department-approved form;

(2) certify in writing that the person is retired and will provide only voluntary charity care;

(3) submit any fee required under §115.80; and

(4) successfully pass a criminal history background check.

(d) Practice. A person holding a retired voluntary charity care status license:

(1) may not provide midwifery services for compensation; and

(2) is limited to providing only those services authorized under a midwife license.

(e) Disciplinary actions. A person holding a retired voluntary charity care status license is subject to disciplinary action for:

(1) a violation of the Act or the rules adopted under this chapter;

(2) obtaining, or attempting to obtain, retired voluntary charity care status by submitting false or misleading information to the department; or

(3) engaging in the practice of midwifery for compensation.

(f) License term. A retired voluntary charity care status license is valid for two years from the date of issuance and may be renewed biennially.

(g) Renewal.

(1) To renew a retired voluntary charity care status license, a licensee must:

(A) submit a completed application on a department-approved form;

(B) submit all the items required for renewal of a midwife license under §115.14, with the exception that only five hours of continuing education must be completed;

(D) successfully pass a criminal history background check.

(2) A person whose retired voluntary charity care status license has expired may late renew the license in accordance with the department’s procedural rules at 16 TAC §60.31 and §60.83.

(3) A person whose retired voluntary charity care status license has expired may not practice or engage in midwifery or perform voluntary charity care.

(h) Returning to active status.

(1) A person who holds a retired voluntary charity care status license and who wants to return to active status must:

(A) submit a completed application on a department-approved form;

(B) complete 10 hours of continuing education in the 12 months preceding the application;

(D) successfully pass a criminal history background check.

(2) The application must be approved by the department before the person can return to active status and provide midwifery services for compensation.

§115.20.Basic Midwifery Education Course Eligibility.

[~~(a)~~] To be eligible for approval by the [~~The~~] department as a basic midwifery education course, a course must: [~~shall consider for approval only courses which have a course supervisor/administrator and site in Texas.~~]

[~~(b)~~] [~~Mandatory basic midwifery education shall:~~]

(1) have a course administrator and site in Texas [~~be offered to ensure that only trained individuals practice midwifery in Texas~~];

(2) be offered only by an [~~any~~] individual or organization meeting the requirements for course approval established by this section [~~subsection~~];

(3) include a didactic component which must [~~shall~~]:

(A) be based upon and completely cover the [~~most~~] current Core Competencies and Standards of Practice of MANA [~~the Midwives Alliance of North America (MANA)~~] and the current Texas Midwifery Basic Information Manual;

(B) prepare the student to apply for certification by NARM; [~~North American Registry of Midwives (NARM);~~] and

(4) be supervised and conducted by a course administrator [~~supervisor/administrator~~] who must [~~shall~~]:

(A) be responsible for all aspects of the course; [~~and~~]

(B) have two years of experience in the independent practice of midwifery, nurse-midwifery, or obstetrics; [~~and~~]

(C) have been primary care giver for at least 75 births including provision of prenatal, intrapartum, and postpartum care; and

(D) be at least one of the following: [~~have met initial licensure requirements; or~~]

(i) a licensed midwife;

(ii) [~~(E)~~] [be] a Certified Professional Midwife (CPM); [or]

(iii) [~~(F)~~] [be] American College of Nurse Midwives (ACNM) certified; or

(iv) [~~(G)~~] [be] a [~~licensed~~] physician licensed in Texas and actively engaged in the practice of obstetrics;[.]

(5) include didactic curriculum instructors who:

(A) have training and credentials for the course material they will teach; and

(B) are approved by the course administrator [~~supervisor/administrator~~].

(6) provide clinical experience [~~experience/preceptorship~~ ] of at least two years [~~one year~~] but no more than five years and equivalent to 1,350 clinical contact hours which prepares the student to become certified by NARM, including successful completion of at least the following activities:

(A) Phase 1. Document attendance at 10 births in any setting, in any capacity (observer, doula, family member, friend, beginning student).

(i) The births may be verified by any witness who was present at the birth.

(ii) The births may not include the person's own birth.

(B) Phase 2. Document completion of the following activities, as an assistant under direct supervision:

(i) 20 births;

(ii) 25 prenatal exams, including 3 initial exams;

(iii) 20 newborn exams; and

(iv) 10 postpartum exams.

(i) 20 births, including:

(I) five births for which the student provides a continuity of care consisting of a minimum of:

(-a-) five prenatal exams spanning at least two trimesters;

(-b-) the birth, including the placenta;

(-c-) the newborn exam (within 12 hours of the birth); and

(-d-) at least two postpartum exams (between 24 hours and 6 weeks following the birth); and

(II) 10 births that include at least one prenatal exam;

(ii) 75 prenatal exams, including 20 initial exams;

(iii) 20 newborn exams; and

(iv) 40 postpartum exams;

~~[(A) serving as an active participant in attending 20 births;]~~

[(B) serving as the primary midwife, under supervision, in attending 20 additional births, at least 10 of which shall be out-of-hospital births. A minimum of 3 of the 20 births attended as primary midwife under supervision must be with women for whom the student has provided primary care during at least 4 prenatal visits, birth, newborn exam and one postpartum exam;]

~~[(C) serving as the primary midwife, under supervision, in performing:]~~

~~[(i) 75 prenatal exams, including at least 20 initial history and physical exams;]~~

~~[(ii) 20 newborn exams; and]~~

~~[(iii) 40 postpartum exams.]~~

(7) include preceptors who are approved by the course administrator; [~~supervisor/administrator and shall be:~~]

~~[(A) licensed midwives;]~~

~~[(B) certified professional midwives;]~~

~~[(C) certified nurse midwives; or]~~

~~[(D) physicians licensed in the United States and actively engaged in the practice of obstetrics.]~~

(8) [~~(c)~~] allow student enrollment only to individuals who [~~Individuals enrolled as students in an approved midwifery course must~~] possess:

(A) [~~(1)~~] a high school diploma or the equivalent; and

(B) [~~(2)~~] [a] current CPR certification [Cardiopulmonary Resuscitation (CPR) certificate for health care providers from the American Heart Association; an equivalent CPR certificate for the professional rescuer from the Red Cross; equivalent certification for healthcare and professional rescuer from the National Safety Council; or equivalent certification issued by any provider of CPR certification for health care providers currently accepted by the Department of State Health Services' Office of EMS/Trauma Systems Coordination].

§115.21.Basic Midwifery Education Course Approval.

(a) Course approval.

(1) To obtain initial approval as a basic midwifery education course, the [~~The~~] course administrator must [~~supervisor/administrator shall~~] submit to the department a completed [an] application, the [~~form and a non-refundable initial midwifery course application~~] fee required under §115.80, and [~~to the department with~~] the following supporting documentation:

(A) course outline;

(B) course curriculum with specific content references to:

(i) MANA Core Competencies;

(ii) NARM Written Test Specifications;

(iii) NARM Skills Assessment Test Specifications;

(iv) Texas Midwifery Basic Information and Instructor Manual; and

(v) protocol writing, adaptation, and revision;[.]

(D) a financial statement or balance sheet (within the last year) for the course administrator [~~supervisor/administrator~~ ] or course owner demonstrating the ability to provide refunds to any students who enroll [~~and disclosure of any bankruptcy within the last five years~~]; and

(E) written policies to include:

(i) entrance requirements;

(ii) [~~(i)~~] a tuition schedule and a list of all additional fees or[~~, other~~] charges;[~~, and~~]

(iii) cancellation and refund policy, including the right of any prospective student to cancel an [~~his/her~~ ] enrollment agreement within 72 hours after signing the agreement and receive a full refund of any money paid;

(iv) [~~(ii)~~] student attendance, progress, and grievance policies;

(v) [~~(iii)~~] rules of operation and conduct of course [~~school~~] personnel;

(vi) [~~(iv)~~] information on the requirements for state licensure, including the notice required by Occupations Code §53.152;

(vii) [~~(v)~~] disclosure of the approval status of the course; and

(viii) [~~(vi)~~] maintenance of student files.[~~; and~~]

~~[(vii) reasonable access for non-English speakers and compliance with federal and state laws on accessibility.]~~

(2) Student files must [~~shall~~] be maintained for a minimum of three [~~five~~] years after the student is no longer enrolled in the course and must [~~shall~~] include:

(A) evidence that the entrance requirements have been met, including CPR certification;

(B) documentation of progression and [~~demonstrating~~ ] completion of didactic and clinical course work; and

(3) [~~The department staff shall review each course application submitted for approval.~~] If an application for initial approval meets all [of] the requirements [~~specified in this paragraph~~], a one-year provisional approval will be granted. The course administrator must then schedule with the department an [An] on-site evaluation of the course to occur within the provisional year [~~shall be scheduled~~]. The evaluation must [~~shall~~] be conducted by [~~a member of the~~] department staff and a licensed midwife within the provisional year. If the department is unable to conduct an on-site evaluation within the provisional year, the provisional approval will be extended until the department conducts an on-site evaluation and issues its approval or denial of the course. The on-site evaluation [~~site visit~~] will include the following:

(A) an inspection of the course's facilities;

(B) a review of its teaching plan, protocols, and teaching materials;

(D) interviews with staff and students; and

(E) a review of student, staff and preceptor files, to include coursework, protocols, and financial records.

(4) The [~~A nonrefundable site visit~~] fee required under §115.80 will [~~shall~~] be assessed for each on-site evaluation [~~site visit~~].

(5) The on-site evaluation [~~site visit~~] written report will [~~shall~~] recommend to the department approval or denial of the course.

(6) The department will [~~shall~~] evaluate the application and all other pertinent information, including any complaints received and the on-site evaluation [~~site visit~~] report.

(b) Course reciprocity. A [~~basic midwifery education~~] course located in Texas which is currently accredited or pre-accredited by MEAC will [~~the Midwifery Education Accreditation Council (MEAC) shall~~] be deemed approved as a basic midwifery education course, without an on-site evaluation, under this subsection upon submission to the department of evidence of such accreditation and the fee required under §115.80. An approval under this subsection is effective only for the period of time during which the course is accredited or pre-accredited by MEAC. A course approved under this subsection that later has its MEAC accreditation or pre-accreditation suspended or revoked must apply for department approval under subsection (a) within 10 days after the suspension or revocation.

(1) The department will [~~shall~~] approve basic midwifery education courses for a three year period. A course with reciprocity under subsection (b) will continue its reciprocity for as long as the course maintains MEAC accreditation or pre-accreditation.

(2) To obtain a new approval period for a current basic midwifery education course, the course administrator must, within [~~Course supervisors/administrators shall reapply for approval~~] six months before the [~~prior to~~] expiration date of the current course approval:[.]

(A) submit to the department a completed application;

(B) schedule with the department, and successfully pass, an on-site evaluation to occur before the expiration date of the current course approval; and

(d) Course changes. A [~~Any~~] substantive change to a basic midwifery course [~~change(s) in the course~~] or its content must be approved by [~~shall be submitted to~~] the department before the change is implemented [~~within ten working days after change(s)~~].

(e) Transfer hours. A basic midwifery education course may accept:

(1) didactic and clinical transfer hours from another basic midwifery education course; and

(2) clinical hours earned under a NARM-certified preceptor.

§115.22.Preceptor Supervisory Responsibilities.

(a) All clinical experience activities performed by a student must be under the direct supervision of a preceptor in accordance with this section.

(1) The student must perform only the activities authorized by the preceptor.

(2) The student must not advertise, or represent to the public in any way, that the student is a midwife.

(3) The student must not receive compensation from a client for performing supervised activities.

(4) Before any service involving a student is provided to a client:

(A) the client must be informed in writing of:

(i) the requirements of this section;

(ii) the identity and license status of the preceptor and the student;

(iii) the services that will be provided under direct supervision to the client; and

(B) the client must consent in writing to the services being provided under direct supervision.

(b) A student acting under direct supervision in accordance with this section is not practicing midwifery in violation of the requirement to hold a license.

(c) A licensed midwife providing direct supervision of a student is responsible for all actions and liabilities of the student.

§115.23.Jurisprudence Examination.

(a) - (c) (No change.)

(d) The department may contract with a vendor to administer the examination. Examination fees will be determined by the vendor contract and will be posted on the department's website. Reexaminations will be made available as necessary. The department or the contracting vendor will grade the examination and provide notice of results to the individual who took the examination.

§115.25.Continuing Education.

All continuing education taken by midwives for the purpose of obtaining or renewing a midwifery license must be in accordance with this section.

(1) (No change.)

(2) Course curriculum must provide an educational experience which:

(A) covers established knowledge or new developments in the fields of midwifery, [or] related disciplines; and [or]

~~[(B) reviews established knowledge in the fields of midwifery or related disciplines; and]~~

(B) [~~(C)~~] shall be presented in standard contact hour increments for continuing health education. [~~; and~~]

~~[(D) shall provide reasonable access for non-English speakers and comply with federal and state laws on accessibility.]~~

(3) (No change.)

(4) Course approval. To be approved by the department, a continuing education course must: [~~Continuing education courses attended to fulfill licensure or license renewal requirements shall be accepted when the courses:~~]

(A) satisfy the requirements of paragraph (2) [~~(2)(A) - (C)~~]; and

(B) be provided or [~~are~~] accredited by one of the following [~~accrediting~~] bodies:

(i) a professional midwifery [~~association~~], nursing, social work, or medical association [~~medicine~~];

(ii) a college, a university, or a [~~an approved~~] basic midwifery education course;

(iii) a nursing, medical, or health care organization;

(iv) a state board of nursing or medicine;

(v) a department of health; or

(vi) a hospital.

§115.70.Standards of Conduct.

The following are grounds for denial of application for licensure or license renewal and for disciplinary action.

(1) The commission or executive director may deny an application for initial licensure or license renewal and may take disciplinary action against any person based upon proof of the following:

(A) - (K) (No change.)

~~[(L) a lack of personal or professional character in the practice of midwifery;]~~

(L) [~~(M)~~] failure to use generally accepted standards of midwifery care;

(M) [~~(N)~~] failure to exercise ordinary diligence in the provision of midwifery care;

(N) [~~(O)~~] failure to act competently in the provision of midwifery care; or

(O) [~~(P)~~] a material misrepresentation knowingly made to the department on any matter or to a client during the provision of midwifery care.

(2) (No change.)

(3) The commission or executive director may suspend or revoke course approval if:

(A) the course no longer meets one or more of the standards established by this chapter [~~subsection~~];

(B) the course administrator [~~supervisor~~], an instructor [~~instructor(s)~~], or a preceptor does [~~preceptor(s) do~~] not have the qualifications required by this chapter [~~subsection~~];

(D) the course administrator [~~supervisor~~] falsified course registration, attendance, completion and/or other records; or

(E) course approval was based on MEAC accreditation or pre-accreditation that has since been suspended or revoked [~~continued approval of the course is not in the public interest~~].

§115.80.Fees.

All fees must be made payable to the department and are nonrefundable.

(1) Midwife license initial application [~~Application~~] fee--$275

(2) Midwife license renewal application [~~Renewal~~ ] fee--$550 for each two-year renewal period

(3) (No change.)

(4) Retired voluntary charity care status license initial application [~~midwife renewal~~] fee--$0 [~~$275~~]

(5) Retired voluntary charity care status license renewal application [~~midwife reinstatement~~] fee--$0 [~~$275~~]

(6) (No change.)

(7) Basic midwifery education [~~Education~~] course initial application fee--$150

(8) Basic midwifery education [~~Education~~] course on-site evaluation [~~site visit~~] fee--$500

(9) - (11) (No change.)

§115.100.Standards for the Practice of Midwifery in Texas.

(a) Using reasonable skill and knowledge, the midwife must [~~shall~~]:

(1) - (3) (No change.)

(4) practice in accordance with the knowledge, clinical skills, and judgments described in the current [~~most recently~~] adopted version of the MANA [~~Midwives Alliance of North America (MANA)~~] Core Competencies for Basic Midwifery Practice, within the bounds of the midwifery scope of practice as defined by the Act and this chapter [~~Rules~~];

(b) (No change.)

(1) (No change.)

(2) review problems identified by the midwife or by other professionals or consumers in the community; [~~and~~]

(3) act to resolve problems that are identified;[.]

(4) - (5) (No change.)

(d) (No change.)

§115.120.Newborn Screening.

(a) Each midwife who attends [~~assists at~~] the birth of a child is responsible for collecting blood specimens for [~~performing the~~] newborn screening tests to the extent required by [~~according to~~] the Health and Safety Code, Chapters 33 and 34, and 25 TAC §§37.51 - 37.65, or making a referral in accordance with this subsection. A midwife must not collect blood specimens for the tests without appropriate training. [~~If the midwife performs the tests, then she or he must have been appropriately trained.~~] Each midwife must have one of the following documents on file with the department to maintain licensure [~~in order to be licensed~~].

(1) Midwife Training Certification Form for Newborn Screening Specimen Collection. A midwife who chooses to collect blood specimens for [~~Should the midwife choose to do~~] the newborn screening tests must first [~~she or he will~~] obtain training to collect blood specimens [~~perform this test~~] from an appropriate health care facility. Instruction must [~~will~~] be based upon the procedure for newborn screening developed by the Department of State Health Service's Newborn Screening Program under authority of the Health and Safety Code, Chapter 33, as implemented in 25 TAC, Chapter 37, Subchapter D. At the completion of the instruction for newborn screening blood collection, the midwife must [~~will~~] request that the form Midwife Training Certification Form for Newborn Screening Specimen Collection be signed by the designated representative of the health care facility, attesting to the fact that the midwife has complied with this requirement. This training, as part of the licensure requirements, is only necessary once unless there is a change in screening procedures. A midwife who submits to the department a completed form in compliance with this paragraph is considered approved by the department to collect blood specimens for the newborn screening tests.

(2) (No change.)

(b) As long as the midwife has been approved by the department to perform the newborn screening test, the act of collecting this specimen will not constitute "practicing medicine" as defined by the Medical Practice Act.

(c) [As long as one is available, a physician or an appropriately trained professional acting under standing delegation order from a physician at an appropriate health care facility shall instruct midwives in the proper procedure (newborn screening collection procedure of the Department of State Health Services' Newborn Screening Program) for newborn screening blood specimen collection and submission.] The physician, or other appropriately trained healthcare provider [~~registered nurse, or any other person~~] who instructs a midwife in the approved techniques for newborn screening on the orders of a physician, is immune from liability arising out of the failure or refusal of a midwife to:

(1) collect and submit the blood specimen in an approved manner; or

(2) send the samples to the laboratories designated by the Department of State Health Services in a timely manner.

(d) (No change.)

§115.121.Informed Choice and Disclosure Statement.

(a) A midwife must use the form prescribed by the department to meet the written informed choice and disclosure requirements of §203.351 of the Act.

(b) The content of the form described in subsection (a) must be provided to a prospective client in both oral and written form before any midwifery service is provided.

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 3, 2023.

TRD-202301264

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 14, 2023

For further information, please call: (512) 463-7750

16 TAC §§115.2, 115.16, 115.121

STATUTORY AUTHORITY

The proposed repeal is proposed under Texas Occupations Code, Chapters 51 and 203, which authorize the Texas Commission of Licensing and Regulation, 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department. The proposed rules are also proposed under Texas Occupations Code, Chapter 112, which requires the adoption of rules providing for reduced fees and continuing education requirements for a retired health care practitioner whose only practice is voluntary charity care.

The statutory provisions affected by the proposed repeal is those set forth in Texas Occupations Code, Chapters 51 and 203, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the proposed repeal.

§115.2.License Required.

§115.16.Renewal for Retired Midwives Performing Charity Work.

§115.121.Informed Choice and Disclosure Statement.

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 3, 2023.

TRD-202301278

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 14, 2023

For further information, please call: (512) 463-7750