TITLE 22. EXAMINING BOARDS

PART 11. TEXAS BOARD OF NURSING

CHAPTER 211. GENERAL PROVISIONS

22 TAC §211.9

Introduction

The Texas Board of Nursing (Board) proposes amendments to §211.9, relating to General Considerations. The amendments are being proposed under the authority of the Occupations Code §301.151 and are necessary for compliance with the statutory mandates of the Government Code Chapter 2261.

Background

During the 84th Legislative Session, Senate Bill (SB) 20 was enacted by the Texas Legislature and amended Chapter 2261 of the Texas Government Code. Among other things, SB 20 requires each state agency, by rule, to establish a procedure to identify each contract that requires enhanced contract or performance monitoring and submit information to the agency's governing body. The proposed amendments are necessary to implement these statutory requirements.

Section by Section Overview. The proposed new subsection sets forth the Board's requirements for enhanced contract and performance monitoring. Proposed §211.9(f)(1) specifies the types of contracts that will require enhanced contract or performance monitoring. These contracts include a contract for the purchase of goods or services that has a value exceeding $1 million and any contract with a value of less than $1 million that the Board's contract monitor determines is appropriate for enhanced contract or performance monitoring. Proposed §211.9(f)(2) specifies the information that will be submitted to the Board by the Board's contract manager or other designated staff member for all contracts that require enhanced contract or performance monitoring. This information includes: the general purpose of the contract; the name of the vendor; the legal authority under which the contract was entered; the current cost of the contract; and the total cost of the contract, including contract renewals. Finally, proposed §211.9(f)(3) provides that the Board's Executive Director will be immediately notified of any serious issue or risk that is identified with respect to a contract monitored under the proposed new subsection.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments will be in effect, there will be no anticipated change in the revenue to state government as a result of the enforcement or administration of the proposal.

Public Benefit/Cost Note. Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefit will be the adoption of a rule that complies with the statutory mandates of the Government Code Chapter 2261 and ensures that Board's contracts are appropriately monitored in accordance with Texas law.

There are no anticipated costs of compliance associated with the proposal. The proposed new subsection does not apply to any entity regulated by the Board. On the contrary, the proposal affects the manner in which the Board and the Board's staff will comply with state contracting laws. Further, the Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045(b) because the proposed rule is not anticipated to result in costs of compliance, is necessary to protect the health, safety, and welfare of the residents of this state, and is necessary to implement legislation, as provided by §2001.0045(c).

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses and Rural Communities. The Government Code §2006.002(c) and (f) require that if a proposed rule may have an economic impact on small businesses or micro businesses or rural communities, state agencies must prepare, as part of the rulemaking process, an economic impact statement that assesses the potential impact of the proposed rule on these businesses and communities and a regulatory flexibility analysis that considers alternative methods of achieving the purpose of the rule. Section 2006.002(c-1) requires that the regulatory analysis "consider, if consistent with the health, safety, and environmental and economic welfare of the state, using regulatory methods that will accomplish the objectives of applicable rules while minimizing adverse impacts on small businesses." Therefore, an agency is not required to consider alternatives that, while possibly minimizing adverse impacts on small and micro businesses, would not be protective of the health, safety, and environmental and economic welfare of the state.

The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and §2006.001(2) must be met in order for an entity to qualify as a micro business or small business. The Government Code §2006.001(1-a) defines a rural community as a municipality with a population of less than 25,000.

The proposal does not impose any costs on any entity regulated by the Board. As such, the Board is not required to prepare an economic impact statement and regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed amendments will be in effect: (i) the proposal does not create or eliminate a government program; (ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal is not expected to have an effect on existing agency positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal is not expected to have an effect on existing agency positions; (iv) the proposal does not require an increase or decrease in fees paid to the Board; (v) the proposal creates new requirements, as the requirements are necessary to implement the provisions of the Government Code Chapter 2261 and are required by statute; (vi) the proposal does not expand or repeal an existing regulation; (vii) the proposal establishes new requirements, but they only apply to the internal management of the Board and to Board staff; and (viii) the proposal does not have an effect on the state's economy.

Takings Impact Assessment. The Board 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 and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

Request for Public Comment. Comments on this proposal may be submitted to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.texas.gov, or faxed to (512) 305-8101. Comments must be received no later than thirty (30) days from the date of publication of this proposal. If a hearing is held, written and oral comments presented at the hearing will be considered.

Statutory Authority. The amendments are proposed under the authority of the Occupations Code §301.151 and the Government Code §2261.253.

Section 301.151 addresses the Board's rulemaking authority. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Section 2261.253(c) provide that each state agency, by rule, shall establish a procedure to identify each contract that requires enhanced contract or performance monitoring and submit information on the contract to the agency's governing body or, if the agency is not governed by a multimember governing body, the officer who governs the agency. The agency's contract management office or procurement director shall immediately notify the agency's governing body or governing official, as appropriate, of any serious issue or risk that is identified with respect to a contract monitored under this subsection.

Cross Reference to Statute. The following statutes are affected by this proposal: the Occupations Code §301.151 and the Government Code §2261.253.

§211.9.General Considerations.

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

(f) Enhanced Contract and Performance Monitoring.

(1) The following contracts require enhanced contract or performance monitoring:

(A) A contract for the purchase of goods or services that has a value exceeding $1 million; and

(B) A contract with a value of less than $1 million, if the Board's contract manager determines enhanced contract or performance monitoring is appropriate.

(2) For contracts identified under paragraph (1) of this subsection, the Board's contract manager or designated staff member must submit the following information to the Board:

(A) the general purpose of the contract;

(B) the name of the vendor;

(C) the legal authority under which the contract was entered;

(D) the current cost of the contract; and

(E) the total cost of the contract, including contract renewals.

(3) The Executive Director shall be immediately notified of any serious issue or risk that is identified with respect to a contract monitored under this subsection.

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 August 17, 2018.

TRD-201803556

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 305-6822


CHAPTER 222. ADVANCED PRACTICE REGISTERED NURSES WITH PRESCRIPTIVE AUTHORITY

22 TAC §222.8, §222.10

Introduction

The Texas Board of Nursing (Board) proposes amendments to §222.8, relating to Authority to Order and Prescribe Controlled Substances, and §222.10, relating to Enforcement. The amendments are being proposed under the authority of the Occupations Code §301.151 and are necessary for compliance with the statutory mandates of the Health and Safety Code §481.0764 and §481.0765. Additionally, the proposed amendments remove outdated and obsolete references from the sections.

Background

During the 85th Legislative Session, the Texas Legislature enacted House Bill (HB) 2561, which amended the Health and Safety Code Chapter 481, and became effective on September 1, 2107. Among other things, HB 2561 requires health care practitioners, including advanced practice registered nurses (APRNs), to access the Texas Prescription Monitoring Program (PMP) prior to prescribing or dispensing opioids, benzodiazepines, barbiturates, or carisoprodol. The bill further authorizes, but does not require, practitioners to access the PMP prior to prescribing or dispensing any controlled substance.

The proposed rule implements these statutory requirements and provides guidance to Board regulated practitioners who prescribe these medications. First, as required by the bill, the proposed rule requires APRNs to access and review the PMP prior to prescribing opioids, benzodiazepines, barbiturates, or carisoprodol. There are two exceptions to this requirement. First, a prescriber is not required to review the PMP if the patient for whom the medication is being prescribed has been diagnosed with cancer or is receiving hospice care, and the APRN clearly notes these circumstances in the patient's prescription record. Second, an APRN will not be in violation of these requirements if the APRN attempts to review the PMP but is unable to do so due to circumstances outside the APRN's control and clearly documents in the patient's prescription record the reason(s) for the APRN's inability to access the PMP. The proposal also encourages, although does not require, APRNs who prescribe controlled substances to review the PMP prior to prescribing these medications.

The Texas PMP collects and monitors prescription data for all controlled substances dispensed by pharmacies in Texas or from a pharmacy that is located in another state that dispenses to Texas residents. The PMP also allows providers to query their own prescribing history. Because opioids, benzodiazepines, barbiturates, carisoprodol (Soma), and other controlled substances have significant addictive risks and potential impact on public health, it is important for APRNs to recognize their responsibility to review the PMP as part of responsible prescribing practices.

Further, the proposal requires APRNs to document their review of the PMP and their rational for prescribing in the patient's prescription record. This requirement is intended to ensure that APRNs who prescribe opioids, benzodiazepines, barbiturates, carisoprodol (Soma), or other controlled substances have appropriately considered the risks associated with the prescribed medication, particularly in light of the patient's past medical history, and have adequate medical necessity and judgment to justify the prescription. Consistent with the provisions of HB 2561, this rule is proposed to become effective September 1, 2019.

Section by Section Overview

Chapter 222 sets forth the general requirements applicable to APRNs with prescriptive authority. Section 222.8 sets forth the specific requirements applicable to APRNs prescribing controlled substances. Proposed amended §222.8(d) sets forth new requirements, consistent with the mandates of HB 2561, regarding the prescription of certain types of controlled substances.

Proposed amended §222.8(d)(1) provides that APRNs should access and review the PMP prior to prescribing any controlled substance for patients being treated for pain. Proposed amended §222.8(d)(2) provides that APRNs must access and review the PMP before prescribing opioids, benzodiazepines, barbiturates, or carisoprodol unless the patient has been diagnosed with cancer or the patient is receiving hospice care and the APRN clearly notes in the prescription record that the patient was diagnosed with cancer or is receiving hospice care. Proposed amended §222.8(d)(3) states that an APRN will not be subject to disciplinary action if the APRN makes a good faith attempt to access and review the PMP prior to prescribing opioids, benzodiazepines, barbiturates, or carisoprodol, but is unable to access the information because of circumstances outside the control of the APRN and clearly notes in the patient's prescription record the APRN's attempt to access and review the PMP and the circumstances that prevented the APRN from being able to do so. Finally, proposed amended §222.8(d)(4) requires that documentation that the review of the PMP occurred and rationale for prescribing a controlled substance be included in the patient's prescription record. The remaining proposed amendments to this section remove obsolete and outdated references from the rule text.

Section 222.10 provides instruction to APRNs regarding the consequences of violating the Nursing Practice Act and Board rules. Specifically, §222.10(a) enumerates several potential violations of the Nursing Practice Act and Board rules for which the Board may impose a disciplinary action. Proposed amended §222.10(a)(6) specifies that an APRN may be subject to disciplinary action for failing to access and review the PMP before prescribing opioids, benzodiazepines, barbiturates, or carisoprodol, unless a statutory exemption has been documented. Further, if an APRN has made a good faith effort to comply with the requirement and is unable to do so because of circumstances beyond the APRN's control, documentation of this effort must be made in the prescription record. The remaining proposed amendments to this section remove obsolete and outdated references from the rule text.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments will be in effect, there will be no anticipated change in the revenue to state government as a result of the enforcement or administration of the proposal.

Public Benefit/Cost Note. Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefit will be the adoption of a rule that complies with the statutory mandates of the Health and Safety Code Chapter 481 and provides guidance to APRNs who prescribe controlled substances consistent with the prevailing standard of care.

There are no new anticipated costs of compliance associated with the proposal. There are no costs associated with registering for access to the PMP or for accessing the PMP. Further, APRNs are already required to document appropriately in a patient's medical/prescription record. The remaining proposed amendments do not impose any requirement or condition on board regulated entities. Thus, the Board does not anticipate any new costs of compliance resulting from the proposal. Further, the Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045(b) because the proposed rule is not anticipated to result in new costs of compliance, is necessary to protect the health, safety, and welfare of the residents of this state, and is necessary to implement legislation, as provided by §2001.0045(c).

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses and Rural Communities. The Government Code §2006.002(c) and (f) require, that if a proposed rule may have an economic impact on small businesses or micro businesses or rural communities, state agencies must prepare, as part of the rulemaking process, an economic impact statement that assesses the potential impact of the proposed rule on these businesses and communities and a regulatory flexibility analysis that considers alternative methods of achieving the purpose of the rule. Section 2006.002(c-1) requires that the regulatory analysis "consider, if consistent with the health, safety, and environmental and economic welfare of the state, using regulatory methods that will accomplish the objectives of applicable rules while minimizing adverse impacts on small businesses." Therefore, an agency is not required to consider alternatives that, while possibly minimizing adverse impacts on small and micro businesses, would not be protective of the health, safety, and environmental and economic welfare of the state.

The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and §2006.001(2) must be met in order for an entity to qualify as a micro business or small business. The Government Code §2006.001(1-a) defines a rural community as a municipality with a population of less than 25,000.

The proposal affects individual APRNs who prescribe certain types of drugs or controlled substances. As such, the Board does not anticipate that any APRN subject to the proposal will qualify as a small business, micro business, or rural community, as those terms are defined by statute. Further, there are no anticipated costs of compliance associated with the proposal. As such, the Board is not required to prepare an economic impact statement and regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed amendments will be in effect: (i) the proposal does not create or eliminate a government program; (ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal is not expected to have an effect on existing agency positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal is not expected to have an effect on existing agency positions; (iv) the proposal does not require an increase or decrease in fees paid to the Board; (v) the proposal creates new requirements, as the requirements are necessary to implement the provisions of the Health and Safety Code Chapter 481; (vi) the proposal does not expand or repeal an existing regulation; (vii) the proposal establishes new requirements, and will apply to any APRN with prescriptive authority that prescribes one of the four classes of drugs defined in the rule or any other controlled substance; and (viii) the proposal does not have an effect on the state's economy.

Takings Impact Assessment. The Board 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 and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

Request for Public Comment. Comments on this proposal may be submitted to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.texas.gov, or faxed to (512) 305-8101. Comments must be received no later than thirty (30) days from the date of publication of this proposal. If a hearing is held, written and oral comments presented at the hearing will be considered.

Statutory Authority. The amendments are proposed under the authority of the Health and Safety Code §481.0764(a), (b), and (d) and §481.0765(a) and (c) and the Occupations Code §301.151.

Section 481.0764(a) provides that a person, authorized to receive information under Section 481.076(a)(5), other than a veterinarian, shall access that information with respect to the patient before prescribing or dispensing opioids, benzodiazepines, barbiturates, or carisoprodol.

Section 481.0764(b) states that a person authorized to receive information under Section 481.076(a)(5) may access that information with respect to the patient before prescribing or dispensing any controlled substance.

Section 481.0764(d) states that a violation of section 481.0764(a) is grounds for disciplinary action by the regulatory agency that issued a license, certification, or registration to the person who committed the violation.

Section 481.0765(a) states that a prescriber is not subject to the requirements of Section 481.0764(a) if the patient has been diagnosed with cancer or the patient is receiving hospice care and the prescriber clearly notes in the prescription record that the patient was diagnosed with cancer or is receiving hospice care, as applicable.

Section 481.0765(c) provides that a prescriber or dispenser is not subject to the requirements of Section 481.0764(a) and a dispenser is not subject to a rule adopted under Section 481.0761(j) if the prescriber or dispenser makes a good faith attempt to comply but is unable to access the information under Section 481.076(a)(5) because of circumstances outside the control of the prescriber or dispenser.

Section 301.151 addresses the Board's rulemaking authority. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Cross Reference to Statute. The following statutes are affected by this proposal: the Health and Safety Code §481.0764(a), (b), and (d) and §481.0765(a) and (c) and the Occupations Code §301.151.

§222.8.Authority to Order and Prescribe Controlled Substances.

(a) APRNs with full licensure and a valid prescription authorization number are eligible to obtain authority to order and prescribe certain categories of controlled substances. The APRN must comply with all federal and state laws and regulations relating to the ordering and prescribing of controlled substances in Texas, including but not limited to, requirements set forth by [the Texas Department of Public Safety and] the United States Drug Enforcement Administration.

(b) - (c) (No change.)

(d) Prescription Monitoring Program (PMP).

(1) APRNs should access and review the prescription monitoring program (PMP) authorized by Chapter 481, Health and Safety Code, prior to prescribing any controlled substance for patients being treated for pain.

(2) APRNs must access and review the PMP before prescribing opioids, benzodiazepines, barbiturates, or carisoprodol unless:

(A) the patient has been diagnosed with cancer or the patient is receiving hospice care; and

(B) the APRN clearly notes in the prescription record that the patient was diagnosed with cancer or is receiving hospice care, as applicable.

(3) An APRN will not be subject to disciplinary action if the APRN:

(A) makes a good faith attempt to access and review the PMP prior to prescribing opioids, benzodiazepines, barbiturates, or carisoprodol, but is unable to access the information because of circumstances outside the control of the APRN; and

(B) clearly notes in the patient's prescription record the APRN's attempt to access and review the PMP and the circumstances that prevented the APRN from being able to do so.

(4) Documentation that the review of the PMP occurred and rationale for prescribing a controlled substance must be included in the patient's prescription record.

§222.10.Enforcement.

(a) Any APRN who violates the sections of this rule or orders or prescribes in a manner that is not consistent with the standard of care shall be subject to removal of the authority to order or prescribe under this section and disciplinary action by the Board. Behaviors associated with ordering and prescribing medications for which the Board may impose disciplinary action include, but are not limited to:

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

(4) selling, purchasing, trading, or offering to sell, purchase, or trade a prescription drug sample; [and]

(5) delegation of authority to any other person to order, prescribe, or dispense of an order or prescription for a drug or device; and [.]

(6) failing to access and review the prescription monitoring program (PMP) authorized by Chapter 481, Health and Safety Code, before prescribing opioids, benzodiazepines, barbiturates, or carisoprodol, unless a statutory exemption contained in that chapter has been documented. If an APRN has made a good faith effort to comply with the requirement and is unable to do so because of circumstances beyond the APRN's control, documentation of this effort shall be made in the prescription record.

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

(e) The Board shall report to [the Texas Department of Public Safety and] the United States Drug Enforcement Administration any of the following:

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

(f) - (h) (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 August 17, 2018.

TRD-201803558

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 305-6822


CHAPTER 228. PAIN MANAGEMENT

22 TAC §228.2

Introduction

The Texas Board of Nursing (Board) proposes new §228.2, relating to Prescription Monitoring Program. The new section is being proposed under the authority of the Occupations Code §301.151 and is necessary for compliance with the statutory mandates of the Health and Safety Code §481.0764 and §481.0765.

Background

During the 85th Legislative Session, the Texas Legislature enacted House Bill (HB) 2561, which amended the Health and Safety Code Chapter 481, and became effective on September 1, 2107. Among other things, HB 2561 requires health care practitioners, including advanced practice registered nurses (APRNs), to access the Texas Prescription Monitoring Program (PMP) prior to prescribing or dispensing opioids, benzodiazepines, barbiturates, or carisoprodol. The bill further authorizes, but does not require, practitioners to access the PMP prior to prescribing or dispensing any controlled substance.

The proposed rule implements these statutory requirements and provides guidance to Board regulated practitioners who prescribe these medications. First, as required by the bill, the proposed rule requires APRNs to access and review the PMP prior to prescribing opioids, benzodiazepines, barbiturates, or carisoprodol. There are two exceptions to this requirement. First, a prescriber is not required to review the PMP if the patient for whom the medication is being prescribed has been diagnosed with cancer or is receiving hospice care, and the APRN clearly notes these circumstances in the patient's prescription record. Second, an APRN will not be in violation of these requirements if the APRN attempts to review the PMP but is unable to do so due to circumstances outside the APRN's control and clearly documents in the patient's prescription record the reason(s) for the APRN's inability to access the PMP. The proposal also encourages, although does not require, APRNs who prescribe controlled substances to review the PMP prior to prescribing these medications.

The Texas PMP collects and monitors prescription data for all controlled substances dispensed by pharmacies in Texas or from a pharmacy that is located in another state that dispenses to Texas residents. The PMP also allows providers to query their own prescribing history. Because opioids, benzodiazepines, barbiturates, carisoprodol (Soma), and other controlled substances have significant addictive risks and potential impact on public health, it is important for APRNs to recognize their responsibility to review the PMP as part of responsible prescribing practices.

Further, the proposal requires APRNs to document their review of the PMP and their rational for prescribing in the patient's prescription record. This requirement is intended to ensure that APRNs who prescribe opioids, benzodiazepines, barbiturates, carisoprodol (Soma), or other controlled substances have appropriately considered the risks associated with the prescribed medication, particularly in light of the patient's past medical history, and have adequate medical necessity and judgment to justify the prescription. Consistent with the provisions of HB 2561, this rule is proposed to become effective September 1, 2019.

Section by Section Overview

Because Chapter 228 contains the Board's requirements specific to pain management, proposed new §228.2(a) states that APRNs should access and review the PMP prior to prescribing any controlled substance for patients being treated for pain.

Proposed new §228.2(b) requires APRNs to access and review the PMP before prescribing opioids, benzodiazepines, barbiturates, or carisoprodol, unless the patient has been diagnosed with cancer or the patient is receiving hospice care, and the APRN clearly notes in the prescription record that the patient was diagnosed with cancer or is receiving hospice care.

Proposed new §228.2(c) provides that an APRN will not be subject to disciplinary action if the APRN makes a good faith attempt to access and review the PMP prior to prescribing opioids, benzodiazepines, barbiturates, or carisoprodol, but is unable to access the information because of circumstances outside the control of the APRN and clearly notes this in the patient's prescription record.

Proposed new §228.2(d) requires an APRN to document the review of the PMP and rationale for prescribing a controlled substance in the patient's prescription record.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed new section will be in effect, there will be no anticipated change in the revenue to state government as a result of the enforcement or administration of the proposal.

Public Benefit/Cost Note. Ms. Thomas has also determined that for each year of the first five years the proposed new section in effect, the anticipated public benefit will be the adoption of a rule that complies with the statutory mandates of the Health and Safety Code Chapter 481 and provides guidance to APRNs who prescribe controlled substances consistent with the prevailing standard of care.

There are no new anticipated costs of compliance associated with the proposal. There are no costs associated with registering for access to the PMP or for accessing the PMP. Further, APRNs are already required to document appropriately in a patient's medical/prescription record. Thus, the Board does not anticipate any new costs of compliance resulting from the proposal. Further, the Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045(b) because the proposed rule is not anticipated to result in new costs of compliance, is necessary to protect the health, safety, and welfare of the residents of this state, and is necessary to implement legislation, as provided by §2001.0045(c).

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses and Rural Communities. The Government Code §2006.002(c) and (f) require, that if a proposed rule may have an economic impact on small businesses or micro businesses or rural communities, state agencies must prepare, as part of the rulemaking process, an economic impact statement that assesses the potential impact of the proposed rule on these businesses and communities and a regulatory flexibility analysis that considers alternative methods of achieving the purpose of the rule. Section 2006.002(c-1) requires that the regulatory analysis "consider, if consistent with the health, safety, and environmental and economic welfare of the state, using regulatory methods that will accomplish the objectives of applicable rules while minimizing adverse impacts on small businesses." Therefore, an agency is not required to consider alternatives that, while possibly minimizing adverse impacts on small and micro businesses, would not be protective of the health, safety, and environmental and economic welfare of the state.

The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and §2006.001(2) must be met in order for an entity to qualify as a micro business or small business. The Government Code §2006.001(1-a) defines a rural community as a municipality with a population of less than 25,000.

The proposal affects individual APRNs who prescribe certain types of drugs or controlled substances. As such, the Board does not anticipate that any APRN subject to the proposal will qualify as a small business, micro business, or rural community, as those terms are defined by statute. Further, there are no anticipated costs of compliance associated with the proposal. As such, the Board is not required to prepare an economic impact statement and regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed new section will be in effect: (i) the proposal does not create or eliminate a government program; (ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal is not expected to have an effect on existing agency positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal is not expected to have an effect on existing agency positions; (iv) the proposal does not require an increase or decrease in fees paid to the Board; (v) the proposal creates a new regulation, as the new section is necessary to implement the provisions of the Health and Safety Code Chapter 481; (vi) the proposal does not expand or repeal an existing regulation; (vii) the proposal establishes a new regulation, so it does not increase or decrease the number of individuals subject to an existing rule's applicability, but the new regulation will apply to any APRN with prescriptive authority that prescribes one of the four classes of drugs defined in the rule or any other controlled substance; and (viii) the proposal does not have an effect on the state's economy.

Takings Impact Assessment. The Board 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 and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

Request for Public Comment. Comments on this proposal may be submitted to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.texas.gov, or faxed to (512) 305-8101. Comments must be received no later than thirty (30) days from the date of publication of this proposal. If a hearing is held, written and oral comments presented at the hearing will be considered.

Statutory Authority. The new section is proposed under the authority of the Health and Safety Code §481.0764(a), (b), and (d) and §481.0765(a) and (c) and the Occupations Code §301.151.

Section 481.0764(a) provides that a person, authorized to receive information under Section 481.076(a)(5), other than a veterinarian, shall access that information with respect to the patient before prescribing or dispensing opioids, benzodiazepines, barbiturates, or carisoprodol.

Section 481.0764(b) states that a person authorized to receive information under Section 481.076(a)(5) may access that information with respect to the patient before prescribing or dispensing any controlled substance.

Section 481.0764(d) states that a violation of section 481.0764(a) is grounds for disciplinary action by the regulatory agency that issued a license, certification, or registration to the person who committed the violation.

Section 481.0765(a) states that a prescriber is not subject to the requirements of Section 481.0764(a) if the patient has been diagnosed with cancer or the patient is receiving hospice care and the prescriber clearly notes in the prescription record that the patient was diagnosed with cancer or is receiving hospice care, as applicable.

Section 481.0765(c) provides that a prescriber or dispenser is not subject to the requirements of Section 481.0764(a) and a dispenser is not subject to a rule adopted under Section 481.0761(j) if the prescriber or dispenser makes a good faith attempt to comply but is unable to access the information under Section 481.076(a)(5) because of circumstances outside the control of the prescriber or dispenser.

Section 301.151 addresses the Board's rulemaking authority. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Cross Reference to Statute. The following statutes are affected by this proposal: the Health and Safety Code §481.0764(a), (b), and (d) and §481.0765(a) and (c) and the Occupations Code §301.151.

§228.2.Prescription Monitoring Program (PMP).

(a) APRNs should access and review the prescription monitoring program (PMP) authorized by Chapter 481, Health and Safety Code, prior to prescribing any controlled substance for patients being treated for pain.

(b) APRNs must access and review the PMP before prescribing opioids, benzodiazepines, barbiturates, or carisoprodol unless:

(1) the patient has been diagnosed with cancer or the patient is receiving hospice care; and

(2) the APRN clearly notes in the prescription record that the patient was diagnosed with cancer or is receiving hospice care, as applicable.

(c) An APRN will not be subject to disciplinary action if the APRN:

(1) makes a good faith attempt to access and review the PMP prior to prescribing opioids, benzodiazepines, barbiturates, or carisoprodol, but is unable to access the information because of circumstances outside the control of the APRN; and

(2) clearly notes in the patient's prescription record the APRN's attempt to access and review the PMP and the circumstances that prevented the APRN from being able to do so.

(d) Documentation that the review of the PMP occurred and rationale for prescribing a controlled substance must be included in the patient's prescription record.

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 August 17, 2018.

TRD-201803555

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 305-6822


PART 23. TEXAS REAL ESTATE COMMISSION

CHAPTER 535. GENERAL PROVISIONS

SUBCHAPTER B. GENERAL PROVISIONS RELATING TO THE REQUIREMENTS OF LICENSURE

22 TAC §535.2

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.2, Broker Responsibility, in Chapter 535, General Provisions.

The proposed amendments to §535.2 were recommended by the Commission appointed Broker Responsibility Working Group. The amendments require a broker to designate anyone who leads, supervises or directs a team in the brokerage to be a delegated supervisor. This will require that person to take a six hour broker responsibility course as part of their required continuing education for each renewal. The timeframe when a license holder must be delegated as a supervisor was shortened from six months to three consecutive months. A reference to a recently adopted advertising rule was added. The term "work files" was deleted and replace with more specific items. A phrase was added to clarify the broker must ensure that a sponsored sales agent has geographic competence in the market area being served. A minimum criteria for training sales agents engaging in a brokerage activity for the first time was added. And, in recognition of digital communications, the timeframes for responding to clients, agents, other brokers, and the Commission were reduced to two and three days respectively.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be better supervision and training of sales agents, ultimately providing greater consumer protection.

For each year of the first five years the proposed amendments are in effect the amendments will not:

--create or eliminate a government program;

--require the creation of new employee positions or the elimination of existing employee positions;

--require an increase or decrease in future legislative appropriations to the agency;

--require an increase or decrease in fees paid to the agency;

--create a new regulation;

--expand, limit or repeal an existing regulation;

--increase or decrease the number of individuals subject to the rule's applicability;

--positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendments.

§535.2.Broker Responsibility.

(a) - (d) (No change.)

(e) A broker may delegate to another license holder the responsibility to assist in administering compliance with the Act and Rules, but the broker may not relinquish overall responsibility for the supervision of license holders sponsored by the broker. Any license holder who leads, supervises, directs, or manages a team must be delegated as a supervisor. Any such delegation must be in writing. A broker shall provide the name of each delegated supervisor to the Commission on a form or through the online process approved by the Commission within 30 days of any such delegation that has lasted or is anticipated to last more than three consecutive [six ] months. The broker shall notify the Commission in the same manner within 30 days after the delegation of a supervisor has ended. It is the responsibility of the broker associate or newly licensed broker to notify the Commission in writing when they are no longer associated with the broker or no longer act as a delegated supervisor.

(f) (No change.)

(g) A broker is responsible to ensure that a sponsored sales agent's advertising complies with §535.154and §535.155 of this title.

(h) Except for records destroyed by an "Act of God" such as a natural disaster or fire not intentionally caused by the broker, the broker must, at a minimum, maintain the following records in a format that is readily available to the Commission for at least four years from the date of closing, termination of the contract, or end of a real estate transaction:

(1) disclosures;

(2) commission agreements such as listing agreements, buyer representation agreements, or other written agreements relied upon to claim compensation;

(3) communications with parties to the transaction[work files];

(4) offers, contracts and related addenda;

(5) receipts and disbursements of compensation for services subject to the Act;

(6) property management contracts;

(7) appraisals, broker price opinions, and comparative market analyses; and

(8) sponsorship agreements between the broker and sponsored sales agents.

(i) A broker who sponsors sales agents or is a designated broker for a business entity shall maintain, on a current basis, written policies and procedures to ensure that:

(1) Each sponsored sales agent is advised of the scope of the sales agent's authorized activities subject to the Act and is competent to conduct such activities, including competence in the geographic market area where the sales agent represents clients.

(2) Each sponsored sales agent maintains their license in active status at all times while they are engaging in activities subject to the Act.

(3) Any and all compensation paid to a sponsored sales agent for acts or services subject to the Act is paid by, through, or with the written consent of the sponsoring broker.

(4) Each sponsored sales agent is provided on a timely basis, before the effective date of the change, notice of any change to the Act, Rules, or Commission promulgated contract forms.

(5) In addition to completing statutory minimum continuing education requirements, each sponsored sales agent receives such additional educational instruction the broker may deem necessary to obtain and maintain, on a current basis, competency in the scope of the sponsored sales agent's practice subject to the Act. At a minimum, when a sales agent performs a real estate brokerage activity for the first time, the broker must require that the sales agent receive coaching and assistance from an experienced license holder competent for that activity.

(6) Each sponsored sales agent complies with the Commission's advertising rules.

(7) All trust accounts, including but not limited to property management trust accounts, and other funds received from consumers are maintained by the broker with appropriate controls in compliance with §535.146.

(8) Records are properly maintained pursuant to subsection (h) of this section.

(j) A broker or supervisor delegated under subsection (e) of this section must respond to sponsored sales agents, clients, and license holders representing other parties in real estate transactions within two[three] calendar days.

(k) A sponsoring broker or supervisor delegated under subsection (e) of this section shall deliver mail and other correspondence from the Commission to their sponsored sales agents within three [10] calendar days after receipt.

(l) - (m) (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 August 17, 2018.

TRD-201803570

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 936-3092


SUBCHAPTER E. REQUIREMENTS FOR LICENSURE

22 TAC §§535.50, 535.53, 535.55

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.55, Definitions, §535.53, Business Entity; Designated Broker, and §535.55, Education and Sponsorship Requirements for a Sales Agent License, in Chapter 535, General Provisions.

The proposed amendments to Subchapter E are made as a result of the Commission's quadrennial rule review. The proposed changes delete or revise outdated or misplaced definitions and correct references to the Commission's Real Estate Recovery Trust Accounts and subchapter references.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be greater clarity in the rule.

For each year of the first five years the proposed amendments are in effect the amendments will not:

--create or eliminate a government program;

--require the creation of new employee positions or the elimination of existing employee positions;

--require an increase or decrease in future legislative appropriations to the agency;

--require an increase or decrease in fees paid to the agency;

--create a new regulation;

--expand, limit or repeal an existing regulation;

--increase or decrease the number of individuals subject to the rule's applicability;

--positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendments.

§535.50.Definitions.

The following words and terms, when used in Subchapter E, F, or G of this chapter, shall have the following meanings, unless the context clearly indicates otherwise or a definition from that subchapter supersedes the definition.

[(1) Alternative delivery method--A method of course delivery other than classroom or correspondence. Alternative delivery method courses include online courses and webinars.]

(1) [(2)] Applicant--A person seeking a license, certificate, registration, approval or permit from the Commission [approval to be a provider or instructor of a course for which core or mandatory continuing education credit is given].

(2) [(3)] Broker Responsibility Course--The course required by §1101.458 of the Act.

[(4) Certified MCE instructor--An instructor approved by the Texas Real Estate Commission and certified to teach the required legal update course, the required ethics course, or the broker responsibility course.]

(3) [(5)] Designated broker--An individual holding an active Texas real estate broker license designated by a business entity licensed by the commission to act on its behalf. The designated broker must be an officer of a corporation, a manager of a limited liability company or a general partner of a partnership.

[(6) Distance learning course--A correspondence course, alternative delivery method course or course offered through video presentation.]

[(7) Elective credits--The hours of mandatory continuing education required to renew a license for which a specific course is not required.]

(4) [(8)] Hour--Fifty minutes of actual session time.

[(9) Instructor--A person approved by the Texas Real Estate Commission to teach core or mandatory continuing education courses.]

[(10) MCE--Mandatory Continuing Education.]

(5) [(11)] Non-elective Courses--The legal update [and ethics] courses required by §1101.455 of the Act and the broker responsibility course required by §1101.458 of the Act.

[(12) Proctor--A person who monitors a final examination for a course offered by a provider under the guidelines contained in this section. A proctor may be a course instructor, the provider, an employee of a college or university testing center, a librarian, or other person approved by the commission.]

[(13) Provider--Any person offering a course for which credit may be granted by the Commission to a licensee or applicant, regardless of whether the Commission must approve or certify the person to offer the course.]

(6) [(14)] Related course--A course determined to be acceptable by the commission to count towards related credit. The commission will periodically publish lists of acceptable real estate related courses.

[(15) Required legal course or legal credits--The required legal update or legal ethics courses or credits earned for attending such courses.]

[(16) Required legal ethics course--A required course created for and approved by the Texas Real Estate Commission to satisfy three of the six legal hours of mandatory continuing education required by §1101.455 of the Act.]

[(17) Required legal update course--A required course created for and approved by the Texas Real Estate Commission to satisfy three of the six legal hours of mandatory continuing education required by §1101.455 of the Act.]

[(18) School--A person accredited by the Texas Real Estate Commission to offer courses for which core credit is given.]

[(19) Student--An individual taking a core or MCE course for TREC credit.]

§535.53.Business Entity; Designated Broker.

(a) (No change.)

(b) Designated Broker.

(1) For the purposes of qualifying for, maintaining, or renewing a license, a business entity must designate an individual holding an active Texas real estate broker license in good standing with the Commission to act for it.

(2) An individual licensed broker is not in good standing with the Commission if:

(A) the broker's license is revoked or suspended, including probated revocation or suspension;

(B) a business entity licensed by the Commission while the broker was the designated broker for that business entity had its license revoked or suspended, including probated revocation or suspension, in the past two years;

(C) the broker has any unpaid or past due monetary obligations to the Commission, including administrative penalties, Real Estate Recovery Trust Account and Real Estate Inspection Recovery Fund [and recovery fund] payments; or

(D) a business entity licensed by the Commission has any unpaid or past due monetary obligations to the Commission, including administrative penalties and Real Estate Recovery Trust Account [recovery fund] payments, that were incurred while the broker was the designated broker for the entity.

(3) Regardless of the type of business entity, the designated broker must be a managing officer of the business entity.

(4) The business entity may not act as a broker during any period in which it does not have a designated broker to act for it who meets the requirements of the Act.

(5) To obtain or renew a license, or upon any change in the business entity's designated broker, the entity must provide to the Commission:

(A) proof of the designated broker's current status as a corporate officer, an LLC manager, an LLC member with managing authority, or a general partner for that entity; and

(B) if the designated broker does not own at least 10 percent of the business entity, proof that the business entity maintains errors and omissions insurance:

(i) in at least the minimum coverage limits required by the Act; and

(ii) that provides coverage for losses due to a violation of the Act or this Chapter.

(6) A broker may not act as a designated broker at any time while the broker's license is inactive, expired, suspended, or revoked.

§535.55.Education and Sponsorship Requirements for a Sales Agent License.

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

(d) The Commission will issue an applicant an inactive sales agent license upon satisfaction of subsection (a) of this section and subsection (c) of §535.57. An inactive sales agent may not practice as a licensed sales agent until sponsored by an active Texas licensed broker.

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 August 17, 2018.

TRD-201803572

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 936-3092


SUBCHAPTER F. REQUIREMENTS FOR EDUCATION PROVIDERS, COURSES AND INSTRUCTORS FOR QUALIFYING EDUCATION

22 TAC §§535.60 - 535.62, 535.65

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.60, Definitions, §535.61, Approval of Providers of Qualifying Courses, §535.62, Approval of Qualifying Courses, and §535.65, Responsibilities and Operations of Providers of Qualifying Courses, in Chapter 535, General Provisions.

The proposed amendments to Subchapter F are made as a result of the Commission's quadrennial rule review. The proposed amendments to §535.60 delete unnecessary or outdated definitions and add or clarify definitions applicable to this Subchapter. The proposed amendments to §535.61 add clarifying terms or timeframes for greater understanding and compliance. The proposed amendments also provides that a provider cannot enroll students in a course 60 days before the expiration of the provider's approval, unless they have submitted an application for a subsequent approval at least 60 days prior to the expiration of the current approval. This will provide greater protection for students who enroll in courses near the end of a provider's approval term and give providers a way to avoid any business disruption when applying for a subsequent approval. In addition, the term "subsequent provider" was changed to "secondary provider" to align the term with the one used more regularly in the education industry. The proposed amendments to §535.62 set out the requirements for course approval in greater detail for better understanding and compliance. The proposed amendments to §535.65 rearrange and clarify some of the items of responsibilities of providers to increase comprehension and compliance.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be greater clarity in the rules, making it easier for providers to submit applications and acceptable courses without any disruption to their business.

For each year of the first five years the proposed amendments are in effect the amendments will not:

--create or eliminate a government program;

--require the creation of new employee positions or the elimination of existing employee positions;

--require an increase or decrease in future legislative appropriations to the agency;

--require an increase or decrease in fees paid to the agency;

--create a new regulation;

--expand, limit or repeal an existing regulation;

--increase or decrease the number of individuals subject to the rule's applicability;

--positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendments.

§535.60.Definitions.

The following words and terms, when used in Subchapter F of this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

[(1) Applicant--A person seeking approval to be an education provider or instructor of qualifying courses.]

(1) [(2)] Classroom delivery--A method of course delivery where the instructor and students interact face to face and in real time, in either the same physical location, or through the use of technology.

(2) [(3)] Distance Education delivery--A method of course delivery other than classroom delivery, including online [alternative delivery] and correspondence delivery.

(3) Combination delivery--A combination of classroom and distance education where at least 50% of the course is offered through classroom delivery.

(4) Instructor--A person approved by the Commission to teach qualifying courses.

(5) Legal Update Courses--required courses created for and approved by the Texas Real Estate Commission to satisfy the eight hours of continuing education required by §1101.455 of the Act.

(6) [(5)] Mandatory qualifying course--A qualifying course that an applicant is required to take to fulfill licensing requirements as mandated by §1101.358 of the Act.

(7) [(6)] Other qualifying course--A qualifying course, other than a mandatory qualifying course, for which the subject matter of the course is specified by the Act or Commission rule, that an applicant is required to take to fulfill licensing requirements.

(8) [(7)] Person--Any individual, partnership, corporation, or other legal entity, including a state agency or governmental subdivision.

(9) [(8)] Provider--Any person approved by the Commission; or specifically exempt by the Act, Chapter 1102, or Commission rule; that offers a course for which qualifying credit may be granted by the Commission to a license holder or applicant.

(10) Proctor--A person who monitors a final examination for a course offered by a provider under the guidelines contained in this section. A proctor maybe a course instructor, the provider, an employee of a college or university testing center, a librarian, or other person approved by the Commission.

(11) [(9)] Scenario-based learning--The use of scenarios to support active learning strategies such as problem-based or case-based learning where students must apply their subject knowledge, critical thinking and problem solving skills in a real-world context.

(12) [(10)] Topic--Subject matter that [categories of what] must be covered in a specific course as defined by the Act, Chapter 1102 and this chapter.

(13) [(11)] Unit--A subtopic that must be covered within a topic.

§535.61.Approval of Providers of Qualifying Courses.

(a) (No change.)

(b) Exempt Providers.

(1) The following persons may submit real estate qualifying courses for approval for credit under §535.62(i) of this subchapter without becoming an approved provider of qualifying courses:

(A) a person approved by a real estate regulatory agency to offer qualifying real estate courses in another state that has approval requirements for providers that are substantially equivalent to the requirements for approval in this state;

(B) an accredited college or university in accordance with §535.66 of this subchapter where courses are offered in accordance with national or regional accreditation standards;

(C) a post-secondary educational institution established in and offering qualifying real estate courses in another state;

(D) a United States armed forces institute; and

(E) a nationally recognized professional designation institute or council in the real estate industry.

(2) The following persons may submit real estate inspector qualifying courses for approval for credit under §535.62(i) of this subchapter without becoming an approved provider of qualifying courses:

(A) a provider approved by an inspector regulatory agency of another state that has approval requirements for providers that are substantially equivalent to the requirements for approval in this state;

(B) an accredited college or university in accordance with §535.66 of this subchapter where courses are offered in accordance with national or regional accreditation standards;

(C) a United States armed forces institute;

(D) a unit of federal, state or local government;

(E) a nationally recognized building, electrical, plumbing, mechanical or fire code organization;

(F) a professional trade association in the inspection field or in a related technical field; or

(G) an entity whose courses are approved and regulated by an agency of this state.

(c) Standards for approval. To be approved as a provider by the Commission, the applicant must meet the following standards:

(1) the applicant must satisfy the Commission as to the applicant's ability to administer courses with competency, honesty, trustworthiness and integrity. If the applicant proposes to employ another person to manage the operation of the applicant, that person must meet this standard as if that person were the applicant;

(2) the applicant must demonstrate that the applicant has sufficient financial resources to conduct its proposed operations on a continuing basis without risk of loss to students taking courses [from the approved provider]; and

(3) that any proposed facilities will be adequate and safe for conducting courses.

(d) - (g) (No change.)

(h) Statutory bond or other security. An approved provider whose statutory bond or other security has been cancelled will be placed on inactive status until the bond or security is reinstated.

(i) [(h)] Payment of an annual operation fee.

(1) An approved provider shall submit the Commission approved form and pay an annual operation fee prescribed by §535.101 of this title no later than the last day of the month of each anniversary [of the] date of the provider's approval.

(2) An approved provider who fails to pay the annual operation fee as prescribed shall be placed on inactive status and notified in writing by the Commission.

(3) The approved provider will remain on inactive status and unable to offer courses until the annual fee is paid.

(4) The Commission will not give credit for courses offered [given] by a provider on inactive status.

(j) [(i)] Disapproval of application.

(1) If the Commission determines that an applicant does not meet the standards for approval, the Commission will provide written notice of disapproval to the applicant.

(2) The disapproval notice, applicant's request for a hearing on the disapproval, and any hearing are governed by the Administrative Procedure Act, Texas Government Code, Chapter 2001, and Chapter 533 of this title (relating to Practice and Procedure). Venue for any hearing conducted under this section shall be in Travis County.

(k) [(j)] Subsequent Approval.

(1) A provider may not enroll a student in a course during the 60-day period immediately before the expiration of the provider's current approval unless the provider has submitted an application [Not earlier than 90 days before the expiration of its current approval, an approved provider may apply] for subsequent approval for another four year period not later than the 60th day before the date of expiration of its current approval.

(2) Approval or disapproval of a subsequent application shall be subject to:

(A) the standards for initial applications for approval set out in this section; and

(B) whether the approved provider has met or exceeded the exam passage rate benchmark established by the Commission under subsection (l) of this section.

(3) The Commission will not require a financial review for subsequent approval if the applicant has provided a statutory bond or other security acceptable to the Commission under §1101.302 of the Act, and there are no unsatisfied final money judgments against the applicant.

(l) [(k)] Exam passage rates and benchmark.

(1) The exam passage rate for an approved provider shall be:

(A) calculated for each license category for which the provider offers courses; and

(B) displayed on the Commission website by license category.

(2) A student is affiliated with a provider under this subsection if the student took the majority of his or her qualifying education with the provider in the two year period prior to taking the exam for the first time.

(3) [(2)] The Commission will calculate the exam passage rate of an approved provider on a monthly basis by:

(A) determining the number of students affiliated with that approved provider who passed the examination on their first attempt in the two-year period ending on the last day of the previous month; and

(B) dividing that number by the total number of students affiliated with that provider who took the exam for the first time during that same period.

[(3) A student is affiliated with a provider under this subsection if the student took the majority of his or her hours of qualifying education with the provider in the two year period prior to taking the exam for the first time.]

(4) For purposes of approving a subsequent application under subsection (k) of this section, the established exam passage rate benchmark for each license category is 80% of the average percentage of the total examinees for that license category who passed the examination on the first attempt in the two year period ending on the last day of the previous month.

(5) If at the time the Commission receives a subsequent application from the provider requesting approval for another four year term [for a provider], the provider's exam passage rate does not meet the established benchmark for a license category the provider will be:

(A) denied approval to continue offering courses [disapproved] for that license category if the provider's exam passage rate is less than 50% of the average percentage of the total examinees for that license category who passed the examination on the first attempt in the two year period ending on the last day of the previous month; or

(B) placed on probation by the Commission if the provider's exam passage rate is greater than 50% but less than 80% [or greater] of the average percentage of the total examinees for that license category who passed the examination on the first attempt in the two year period ending on the last day of the previous month.

(6) The exam passage rate of a provider on probation will be reviewed annually at the time the annual operating fee is due to determine if the provider can be removed from probation, remain on probation or have its license revoked, based on the criteria set out in paragraph (5) of this subsection.

§535.62.Approval of Qualifying Courses.

(a) (No change.)

(b) Standards for course approval. To be approved as a qualifying course by the Commission, a provider must satisfy the Commission that the course:

(1) covers all topics [topic] and units [unit areas] for the [specific] course subject required by the Act, Chapter 1102 and this chapter;

(2) covers all units within the prescribed topic;

[(2) devotes the time prescribed for each topic required by a course approval form adopted by the Commission;]

(3) contains sufficient content to satisfy the number of hours for which credit is being requested as evidenced by:

(A) word count studies;

(B) samples of student time studies; or

(C) other methods acceptable to the Commission.

(4) [(3)] will be scheduled for the full clock hours of time for which credit is awarded and presented in full hourly units;

(5) [(4)] does not have daily course segments that exceed 12 hours;

(6) [(5)] will be delivered by one of the following delivery methods:

(A) classroom delivery;

(B) distance education delivery; (or) [and]

(C) a combination of subparagraphs (A) and (B) of this paragraph, if at least 50% of the combined course is offered by classroom delivery[; and]

(7) [(6)] include at a minimum, the following methods to assess a student's comprehension of the course material:

(A) topic quizzes, with at least three questions related to the subject matter in [of] each course topic;

(B) at least one scenario-based learning exercise per every increment of 10 credit hours or less; and

(C) if the course is delivered by distance education delivery:

(i) Prevent the student from moving from one topic to the next topic until the student answers all topic quiz questions correctly and receives a passing grade on the scenario based learning exercises; and

(ii) for quiz questions answered incorrectly, employ a method to present the rationale behind the correct answer and ask a subsequent related quiz question that will count toward passing the topic if answered correctly; and

(8) [(7)] include [will have] at least four versions of a final examination, and ensure that each version of the examination:

(A) covers each topic required by the Act or Rules for the specific course;

(B) does not contain any true/false questions;

(C) does not repeat more than one third of the questions from [any] other versions [version] of the final examination;

(D) for all qualifying courses other than a real estate math course:

(i) consists of at least two questions per credit course hour; and

(ii) draws from a question bank consisting of at least four questions per credit course hour; and

(E) for all qualifying real estate math courses, consists of at least 20 questions that are drawn from a question bank consisting of at least 40 questions.

(c) If the course is currently certified by a distance learning certification center acceptable to the Commission, the provider will be deemed to have met requirements for verification of clock/course hours [and design] for distance education delivery.

(d) Approval of currently approved courses by a secondary [subsequent] provider.

(1) If a secondary [subsequent] provider wants to offer a course currently approved for another provider, the secondary [subsequent] provider must:

(A) submit the course application and approval forms including all materials required;

(B) submit written authorization to the Commission from the owner of the rights to the course material granting permission for the secondary [subsequent] provider to offer the course; and

(C) pay the fee required by §535.101 or §535.210 of this title.

(2) If approved to offer the previously approved course, the secondary [subsequent] provider is required to:

(A) offer the course as originally approved, assume the original [including] expiration date, include [with] any approved revisions, use [using] all materials required for the course; and

(B) meet the requirements of §535.65 of this subchapter.

(e) Required revision of a currently approved qualifying course.

(1) Providers are responsible for keeping current on changes to the Act and Commission Rules and must revise or supplement materials for approved courses when changes are adopted [to present the current version of all applicable statutes and rules] on or before the effective date of those statutes or rules.

(2) If the Commission adopts new requirements for a course, including but not limited to a course approval form that divides selected qualifying course subjects into topics and units, the Commission will determine, at the time the Commission adopts the new requirements, whether a provider must revise the course or supplement the course. Any provider currently offering a course [on] that is subject to change must:

(A) revise or supplement any currently approved classroom qualifying course covering that subject no later than 12 months after the effective date of the new requirements;

(B) revise or supplement any currently approved qualifying course offered by distance or combination [education] delivery no later than 15 months after the effective date of the new requirements;

(3) If the Commission determines that a qualifying course should be supplemented, a provider must submit the supplemental materials required by the Commission. No fee will be required and the course will maintain its original expiration date.

(4) If the Commission determines that a qualifying course should be revised, a provider must:

(A) submit the course application and approval forms including all materials required; and

(B) pay the fee required by §535.101 or §535.210 of this title.

(5) A provider may not offer a [currently approved] course for qualifying credit after the deadlines established by this subsection following a required revision or supplement [of a qualifying course] if the provider has not received written approval from the Commission to offer the revised or supplemented course.

(6) If a provider paid a fee for the initial course approval, the provider will receive a prorated credit on the fee paid under this subsection for a revised course for the unexpired time remaining on that initial approval. The Commission will calculate the prorated credit by dividing the fee paid for the initial approval by 48 months and multiplying that amount by the number of full months remaining between the approval date of the revised course and the expiration date of the currently approved version of the course.

(7) A revised course approved under this subsection expires four years from the date of approval of the revision.

(8) No later than 90 days before the effective date of a revised or supplemented course, a provider shall send written notice to all students who have purchased the currently approved course and not completed it, that credit will no longer be given for the current course as of the effective date of the revised or supplemented course.

(9) If an approved provider fails to give the notice set out in paragraph (8) of this subsection, the provider shall allow the student to take the revised or supplemented course at no additional charge.

(f) (No change.)

(g) Approval and Expiration of approval.

(1) A Qualifying provider shall not offer qualifying education courses until the provider has received written notice of the approval from the Commission.

(2) A Qualifying course expires four years from the date of approval and providers must reapply and meet all current requirements of this Section to offer the course for another four years.

[(1) Courses approved after January 1, 2011 are valid for four years from the date of approval.]

[(2) Courses approved before January 1, 2011 expire on December 31, 2015.]

(3) Courses approved for use by a subsequent provider under subsection (d) of this section expire on the same date that the originally approved course expires.

[(4) Currently approved versions of a course expire 90 days after approval of a revised version of that course.]

(h) Renewal of course approval.

(1) Not earlier than 90 days before the expiration of a course approval, a provider may apply for [obtain] a renewal of course approval for another four-year [four year] period [by following the process and meeting the current standards for an initial course approval].

(2) Approval of an application to renew course approval shall be subject to the standards for initial approval set out in this section.

(i) (No change.)

§535.65.Responsibilities and Operations of Providers of Qualifying Courses.

(a) (No change.)

(b) Use of approved Instructor.

(1) Except as provided by this subsection, a provider must use an instructor that is currently approved by the Commission to teach the specified course;

(2) Each instructor shall be selected on the basis of expertise in the subject area of instruction and ability as an instructor;

(3) A provider shall require specialized training or work experience for instructors teaching specialized subjects such as law, appraisal, investments, taxation or home inspection;

(4) An instructor shall teach a course in substantially the same manner represented to the Commission in the instructor's manual or other documents filed with the application for course approval [form]; and

(5) A provider may use the services of a guest instructor who is not approved as an instructor by the Commission for qualifying real estate or inspector courses provided that person instructs for no more than 10% of the total course time.

(c) Advertising.

(1) The following practices are prohibited:

(A) using any advertising which does not clearly and conspicuously contain the provider's name on the first page or screen of the advertising;

(B) representing that the provider's program is the only vehicle by which a person may satisfy educational requirements;

(C) conveying a false impression of the provider's size, superiority, importance, location, equipment or facilities, except that a provider may use objective information published by the Commission regarding pass rates;

(D) promoting the provider directly or indirectly as a job placement agency, unless the provider is participating in a program recognized by federal, state, or local government and is providing job placement services to the extent the services are required by the program;

(E) making any statement which is misleading, likely to deceive the public, or which in any manner tends to create a misleading impression;

(F) advertising a course under a course name other than the course name approved by the Commission; or

(G) advertising using a name that implies the course provider is the Texas Real Estate Commission, including use of the acronym "TREC", in all or part of the course provider's name.

(2) Any written advertisement by a provider that includes a fee that the provider charges for a course must display any additional [all] fees that the provider charges for the course in the same place in the advertisement and with the same degree of prominence.

(3) The provider shall advertise a course for the full clock hours of time for which credit is awarded.

(4) The provider is responsible for and subject to sanctions for any violation of this subsection by any affiliate or other third party marketer or web hosting site associated with or used by the provider.

(d) - (f) (No change.)

(g) Presentation of courses.

(1) Classroom Delivery:

(A) The location for the course must be:

(i) conducive to instruction, such as a classroom, training room, conference room, or assembly hall that is separate and apart from work areas;

(ii) adequate for the class size;

(iii) pose no threat to the health or safety of students; and

(iv) allow the instructor to see and hear each student and the students to see and hear the instructor, including when offered through the use of technology.

(B) The provider must:

(i) check the photo identification of each student at class sign up and when signing in for each subsequent meeting of the class;

(ii) ensure the student is present for the course for the hours of time for which credit is awarded;

(iii) provide a 10 minute break per hour at least every two hours; and

(iv) not have daily course segments that exceed 12 hours.

(C) If the course is a qualifying or non-elective continuing education course delivered through the use of technology and there are more than 20 students registered for the course, the provider will also use:

(i) a monitor at the broadcast origination site to verify identification of each student, monitor active participation of each student and facilitate questions for the instructor; and

(ii) a proctor at each remote site with more than 20 students to verify identification of each student, monitor active participation of each student and proctor any on-site examination.

(D) Makeup Session for Classroom Courses.

(i) A provider may permit a student who attends at least two-thirds of an originally scheduled qualifying course to complete a makeup session to satisfy attendance requirements.

(ii) A member of the provider's staff must approve the makeup procedure to be followed. Acceptable makeup procedures are:

(I) attendance in corresponding class sessions in a subsequent offering of the same course; or

(II) the supervised presentation by audio or video recording of the class sessions actually missed.

(iii) A student shall complete all class makeup sessions no later than the 90th day after the date of the completion of the original course.

[(iv) Dropped status may not be changed by makeup sessions, and any hours accumulated by a student may not be transferred to any other course, prior to being dropped from a course.]

(iv) [(v)] A student who attends less than two-thirds of the originally scheduled qualifying course is not eligible to complete a makeup session. The student shall automatically be dropped from the course with no credit [and the provider shall report the student's status to the Commission].

(2) Distance Education Delivery. The provider must ensure that:

(A) the student taking all topics of the course and completing all quizzes and exercises is the student receiving credit for the course through a student identity verification [validation ] process acceptable to [that meets guidelines approved by] the Commission;

(B) an approved instructor is available to answer students' questions or provide assistance as necessary in a timely manner;

(C) a student has completed all instructional modules and attended any hours of live instruction required for a given course; and

(D) an approved instructor is responsible for providing answers and rationale for the grading of the written course work.

(3) A provider is not required to present topics [and units] in the order outlined for a course on the corresponding course approval form.

(4) The periods of time prescribed to each unit of a topic for a qualifying course as outlined on the corresponding course approval form are recommendations and may be altered to allow instructors flexibility to meet the particular needs of their students.

(h) Course examinations.

(1) The final examination given at the end of each course must be given in the manner submitted to and approved by the Commission [a form and with questions that were submitted to the Commission with the course approval form]. All final examinations must be closed book [booked].

(2) Final examination questions must be kept confidential and be significantly different from any quiz questions [quizzes ] and exercises used in the course.

(3) A provider shall not permit a student to view or take a final examination before the completion of regular course work and any makeup sessions required by this section.

(4) A provider must rotate all versions of the examination required by §535.62(b)(7) of this title throughout the approval period for a course in a manner acceptable to the Commission and examinations must:

(A) require an unweighted passing score of 70%; and

(B) be proctored by a member of the provider faculty or staff, or third party proctor acceptable to the Commission, who:

(i) is present at the test site or able to monitor the student through the use of technology acceptable to the Commission; and

(ii) has positively identified that the student taking the examination is the student registered for and who took the course.

(5) The following are examples of acceptable third party proctors:

(A) employees at official testing or learning/tutoring centers;

(B) librarians at a school, university, or public library;

(C) college or university administrators, faculty, or academic advisors;

(D) clergy who are affiliated with a specific temple, synagogue, mosque, or church; and

(E) educational officers of a military installation or correctional facility.

(6) A provider may not give credit to a student who fails a final examination and a subsequent final examination as provided for in subsection (i) of this section.

(i) (No change.)

(j) Course completion certificate.

(1) Upon successful completion of a qualifying [core] course, a provider shall issue a course completion certificate that a student can submit to the Commission. The course completion certificate shall show:

(A) the provider's name and approval number;

(B) the instructor's name and instructor license number assigned by the Commission;

(C) the course title;

(D) course numbers;

(E) the number of classroom credit hours;

(F) the course delivery method;

(G) [(F)] the dates the student began and completed the course; and

(H) [(G)] printed name and signature of an official of the provider on record with the Commission.

(2) A provider may withhold any official completion documentation required by this subsection from a student until the student has fulfilled all financial obligations to the provider.

(3) A provider shall maintain adequate security against forgery for official completion documentation required by this subsection.

(k) Instructor and course evaluations.

(1) A provider shall provide each student enrolled in a course with an instructor and course evaluation form and provide a link to an online version of the form that a student can complete and submit any time after course completion.

(2) An instructor may not be present when a student is completing the evaluation form and may not be involved in any manner with the evaluation process.

(3) When evaluating an instructor or course, a provider shall use all of the questions from the evaluation form approved by the Commission, in the same order as listed on that form. A provider may [also] add additional questions to the end of the Commission evaluation questions or request the students to also complete the provider's evaluation form.

(4) A provider shall maintain any comments made by the provider's management relevant to instructor or course evaluations with the provider's records.

(5) At the Commission's request, a provider shall produce instructor and course evaluation forms for inspection by Commission staff.

(l) Maintenance of records for a provider of qualifying courses.

(1) A provider shall maintain records of each student enrolled in a course for a minimum of four years following completion of the course, including course and instructor evaluations and student enrollment agreements.

(2) A provider shall maintain financial records sufficient to reflect at any time the financial condition of the school.

(3) A school's financial statement and balance sheets must be available for audit by Commission staff, and the Commission may require presentation of financial statements or other financial records.

(4) All records may be maintained electronically but must be in a common format that is legible [legibly] and easily printed or viewed without additional manipulation or special software.

(m) Changes in Ownership or Operation of an approved provider of qualifying courses.

(1) An approved provider shall obtain the approval of the Commission at least 30 days in advance of any material change in the operations [operation] of the provider by submitting the Qualifying Education Provider Supplement Application, including but not limited to changes in:

[(A) ownership;]

(A) [(B)] Operations or records management; and

(B) [(C)] the location of main office and any other locations where courses are offered.

[(2) An approved provider, upon transfer to the new owner, must meet the financial review standards imposed by §535.61 of this subchapter.]

(2) [(3)] An approved provider requesting approval of a change in ownership shall provide all of the following information or documents to the Commission:

(A) An Education Provider Application reflecting all required information for each owner and the required fee;

(B) A Principal Information Form for each proposed new owner who holds at least 10% interest in the school;

(C) Financial documents to satisfy standards imposed by §535.61 of this title, including a $20,000 surety bond for the proposed new owner; and

(D) Business documentation reflecting the change.

[(A) a new bond of $20,000 for the proposed new owner, a statement from the bonding company indicating that the former bond will transfer to the proposed new owner, or other security acceptable to the Commission under §1101.302 of the Act;]

[(B) an Education Provider Application reflecting all required information for each proposed new owner;]

[(C) a Principal Information Form for each proposed new owner who would hold at least a 10% interest in the school; and]

[(D) pay the fee required by §535.101 or §535.210 of this title.]

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 August 17, 2018.

TRD-201803573

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 936-3092


SUBCHAPTER G. REQUIREMENTS FOR CONTINUING EDUCATION PROVIDERS, COURSES AND INSTRUCTORS

22 TAC §§535.70, 535.72, 535.75

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.70, Definitions, §535.72, Approval of Non-elective Continuing Education Courses, and §535.75, Responsibilities and Operations of Continuing Education Providers, in Chapter 535, General Provisions.

The proposed amendments to Subchapter G are made as a result of the Commission's quadrennial rule review. The proposed amendments delete unnecessary or outdated definitions and add or clarify definitions applicable to this Subchapter. In addition, the term "subsequent provider" was changed to "secondary provider" to align the term with the one used more regularly in the education industry. The proposed amendments also add clarifying terms and corrects a subchapter reference.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be greater clarity in the rule.

For each year of the first five years the proposed amendments are in effect the amendments will not:

--create or eliminate a government program;

--require the creation of new employee positions or the elimination of existing employee positions;

--require an increase or decrease in future legislative appropriations to the agency;

--require an increase or decrease in fees paid to the agency;

--create a new regulation;

--expand, limit or repeal an existing regulation;

--increase or decrease the number of individuals subject to the rule's applicability;

--positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendments.

§535.70.Definitions.

The following words and terms, when used in Subchapter G of this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Broker Responsibility Course--The course required by §1101.458 of the Act. [Applicant--A person seeking accreditation or approval to be a continuing education provider or instructor.]

(2) CE--Continuing education.

(3) [(2)] CE instructor--A person approved by the Commission to teach continuing education courses.

(4) [(3)] CE provider--Any person approved by the Commission; or specifically exempt by the Act, Chapter 1102, Texas Occupation Code, or Commission rule; that offers a course for which continuing education credit may be granted by the Commission to a license holder or applicant.

(5) [(4)] Classroom delivery--A method of course delivery where the instructor and students interact face to face and in real time, in either the same physical location, or through the use of technology.

(6) [(5)] Distance education delivery--A method of course delivery other than classroom delivery, including online [alternative delivery] and correspondence delivery.

(7) Combination delivery--A combination of classroom and distance education where at least 50% of the course is offered through classroom delivery.

(8) [(6)] Elective CE course--A continuing education course, other than a Non-elective CE course, approved by the Commission as acceptable to fulfil the continuing education hours needed to renew a license.

(9) [(7)] Non-elective CE course--A continuing education course, for which the subject matter of the course is specifically mandated by the Act, Chapter 1102, or Commission rule, that a license holder is required to take prior to renewal of a license.

(10) Legal Update Courses--Required courses created for and approved by the Texas Real Estate Commission to satisfy the eight hours of continuing education required by §1101.455 of the Act.

(11) [(8)] Person--Any individual, partnership, corporation, or other legal entity, including a state agency or governmental subdivision.

(12) Proctor--A person who monitors a final examination for a course offered by a provider under the guidelines contained in this section. A proctor may be a course instructor, the provider, an employee of a college or university testing center, a librarian, or other person approved by the Commission.

§535.72.Approval of Non-elective Continuing Education Courses.

(a) - (d) (No change.)

(e) Instructors. A CE provider must use:

(1) For non-elective real estate CE courses, an approved [a CE] instructor who has been certified as required under §535.74 of this title; and

(2) For non-elective inspector CE courses, an approved [a CE] instructor who has been approved as required under §535.74 of this title.

(f) - (g) (No change.)

(h) Course examinations.

(1) A provider must administer a final examination promulgated by the Commission for non-elective CE courses [beginning January 1, 2017] as follows:

(A) For classroom delivery, the examination will be given as a part of class instruction time with each student answering the examination questions independently followed by a review of the correct answers by the instructor. There is no minimum passing grade required to receive credit.

(B) For distance education delivery, the examination will be given after completion of regular course work and must be:

(i) proctored by a member of the provider faculty or staff, or third party proctor set out in §535.65(h)(5) of this title, who is present at the test site and has positively identified that the student taking the examination is the student registered for and who took the course; or

(ii) administered using a computer under conditions that satisfy the Commission that the student taking the examination is the student registered for and who took the course; and

(iii) graded with a pass rate of 70% in order for a student to receive credit for the course; and

(iv) kept confidential.

(2) A provider may not give credit to a student who fails a final examination and subsequent final examination as provided for in subsection (j) of this section.

(i) (No change.)

(j) Approval of currently approved courses by a secondary [subsequent] provider.

(1) If a CE provider wants to offer a course currently approved for another provider, that secondary [subsequent ] provider must:

(A) submit the CE course application supplement form(s);

(B) submit written authorization to the Commission from the author or provider for whom the course was initially approved granting permission for the subsequent provider to offer the course; and

(C) pay the fee required by §535.101 or §535.210 of this title.

(2) If approved to offer the currently approved course, the secondary [subsequent] provider is required to:

(A) offer the course as originally approved, assume the original [including] expiration date, include [with] any approved revisions, use [using] all materials required for the course; and

(B) meet the requirements of §535.75 of this subchapter.

(k) - (l) (No change.)

§535.75.Responsibilities and Operations of Continuing Education Providers.

(a) (No change.)

(b) Use of approved Instructor. The use of approved CE instructor is governed by this subsection.

(1) Except as provided by this subsection, a CE provider must use an instructor that:

(A) is currently approved by the Commission; and;[.]

(B) [(2)] has [Each CE instructor shall be selected on the basis of] expertise in the subject area of instruction and ability as an instructor;

(2) [(3)] A [An] CE instructor shall teach a course in substantially the same manner represented to the Commission in the instructor's manual or other documents filed with the application for course approval form;

(3) [(4)] A CE provider may use the services of a guest instructor who is not approved as a CE instructor by the Commission for real estate or inspector elective CE courses provided that:

(A) that guest instructor instructs for no more than a total of 50% of the course; and

(B) a commission approved CE instructor remains in the classroom during the guest instructor's presentation.

(4) [(5)] A CE provider may use the services of a guest instructor who is not approved as a CE instructor by the Commission for 100% of a real estate or inspector elective CE courses provided that

(A) the CE provider is:

(i) an accredited college or university;

(ii) a professional trade association that is approved by the Commission as a CE provider under §535.71 of this subchapter; or

(iii) an entity exempt under §535.71 of this subchapter; and

(B) the course is supervised and coordinated by a Commission approved CE instructor who is responsible for verifying the attendance of all who request CE credit.

(c) CE course examinations. Examinations are only required for CE courses offered through distance education delivery and must comply with the requirements in §535.72(h)(1)(B) [§535.72(i)(1)(B) ] of this subchapter and have a minimum of four questions per course credit hour.

(d) - (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 August 17, 2018.

TRD-201803574

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 936-3092


SUBCHAPTER J. FEES

22 TAC §535.101

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.101, Fees, in Chapter 535, General Provisions.

The proposed amendment to §535.101 reduces the fee paid by a broker or sales agent from $20 to $10 each time a sales agent establishes or changes sponsorship. This change is recommended by the Commission as part of its FY2019 budget approval. Each year that revenues exceed expenses, after projecting the next year's revenues and expenses and meeting the requirements for fiscally responsible operational reserves, the agency has a standing policy of considering whether a reduction in fees is appropriate. As it has done in prior years, the Commission has determined that it is fiscally sound to lower this fee to reduce one cost of doing business for license holders.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be to lessen the financial burden on license holders.

Melissa Huerta, Accounting Manager for the Commission, has determined that for the first five years the amendments are in effect the amendments will result in a decrease of revenue to the agency. The average annual number of sponsorship relationships established over the past five fiscal years and current fiscal year through June 2018 is 49,589. Reducing the fee by $10 will result in a net loss of revenue of $495,890 annually. Given that the agency has had excess revenue over this amount for the past several years and will meet budgeted reserve amounts, it is fiscally sound to lower this fee to reduce one cost of doing business for license holders.

For each year of the first five years the proposed amendments are in effect the amendments will not:

--create or eliminate a government program;

--require the creation of new employee positions or the elimination of existing employee positions;

--require an increase or decrease in future legislative appropriations to the agency;

--create a new regulation;

--expand, limit or repeal an existing regulation;

--increase or decrease the number of individuals subject to the rule's applicability;

--positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendments.

§535.101.Fees.

(a) The Commission shall charge and collect the following fees:

(1) a fee of $150 for filing an original or reinstatement application for a real estate broker license, which includes a fee for transcript evaluation;

(2) a fee of $72 for the timely renewal of a real estate broker license;

(3) a fee of $120 for filing an application to step down from a real estate broker license to a real estate sales agent license;

(4) a fee of $150 for filing an original or reinstatement application for a real estate sales agent license, which includes a fee for transcript evaluation;

(5) a fee of $66 for the timely renewal of a real estate sales agent license;

(6) a fee equal to 1-1/2 times the timely renewal fee for the late renewal of a license within 90 days of expiration;

(7) a fee equal to 2 times the timely renewal fee for the late renewal of a license more than 90 days but less than six months after expiration;

(8) a fee of $50 for filing a request for, or renewal of, a license for each additional office or place of business for a period of two years;

(9) the fee charged by an examination provider pursuant to a contract with the Commission for taking a license examination;

(10) a fee of $10 for deposit into the real estate recovery trust account upon the filing of an original sales agent or broker application;

(11) a fee of $10 to establish or change a relationship with a sponsoring broker;

(12) [(11)] a fee of $20 for filing a request for a license certificate due to a change of place of business[,] or a change of a license holder name[, or to establish a relationship with a sponsoring broker]:

(A) A change of address or name submitted with an application to renew a license, however, does not require payment of a fee in addition to the fee for renewing the license.

(B) The Commission may require written proof of a license holder's right to use a different name before issuing a license certificate reflecting a change of name.

(13) [(12)] a fee of $50 to request an inactive broker license be returned to active status;

(14) [(13)] a fee of $40 for preparing a certificate of license history, active licensure, or sponsorship;

(15) [(14)] a fee of $50 for filing a moral character determination;

(16) [(15)] a fee of $400 for filing an application for accreditation of a qualifying education program for a period of four years;

(17) [(16)] after initial approval of accreditation, a fee of $200 a year for operation of a qualifying real estate education program;

(18) [(17)] a fee of $50 plus the following fees per classroom hour approved by the Commission for each qualifying education course for a period of four years:

(A) $10 for content and examination review;

(B) $10 for classroom delivery design and presentation review; and

(C) $20 for distance education delivery design and presentation review;

(19) [(18)] a fee of $400 for filing an application for accreditation as a Continuing Education provider for a period of two years;

(20) [(19)] a fee of $50 plus the following fees per classroom hour approved by the Commission for each continuing education course for a period of two years:

(A) $5 for content and examination review;

(B) $5 for classroom delivery design and presentation review; and

(C) $10 for distance education delivery design and presentation review;

(21) [(20)] the fee required under paragraphs (18)(C) [(17)(C)] and (20)(C) [(19)(C)] will be waived if the course has already been certified by a distance learning certification center acceptable to the Commission;

(22) [(21)] a fee of $150 for filing an application for approval as an instructor for a two-year period for real estate qualifying or continuing education courses;

(23) [(22)] the fee charged by the Federal Bureau of Investigation and Texas Department of Public Safety for fingerprinting or other service for a national or state criminal history check in connection with a license application or renewal;

(24) [(23)] the fee required by the Department of Information Resources as a subscription or convenience fee for use of an online payment system;

(25) [(24)] a continuing education deferral fee of $200;

(26) [(25)] a late reporting fee of $250 to reactivate a license under §535.93 of this title;

(27) [(26)] a fee of $30 for processing a check or other equivalent instrument returned by a bank or depository as dishonored or reversed;

(28) [(27)] a fee of $20 for filing any application, renewal, change request, or other record on paper that a person may otherwise file with the Commission electronically by accessing the Commission's website, entering the required information online, and paying the appropriate fee; and

(29) [(28)] a fee of $20 per certification when providing certified copies of documents.

(b) - (c) (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 August 17, 2018.

TRD-201803575

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 936-3092


SUBCHAPTER Q. ADMINISTRATIVE PENALTIES

22 TAC §535.191

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.191, Schedule of Administrative Penalties, in Chapter 535, General Provisions.

The proposed amendments to §535.191 are made as a result of the Commission's quadrennial rule review. The amendments move several violations to a lower tier of penalties and add several violations that are new or were missing from the penalty matrix.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be greater parity of administrative penalties for similar level violations and to lessen the burden on license holders.

For each year of the first five years the proposed amendments are in effect the amendments will not:

--create or eliminate a government program;

--require the creation of new employee positions or the elimination of existing employee positions;

--require an increase or decrease in future legislative appropriations to the agency;

--require an increase or decrease in fees paid to the agency;

--create a new regulation;

--expand, limit or repeal an existing regulation;

--increase or decrease the number of individuals subject to the rule's applicability;

--positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendments.

§535.191.Schedule of Administrative Penalties.

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

(c) An administrative penalty range of $100-$1,500 per violation per day may be assessed for violations of the following sections of the Act and Rules:

(1) §1101.552;

(2) §1101.652(a)(3);

(3) §1101.652(a)(7);

(4) §§1101.652(a-1)(3);

(5) §1101.652(b)(23);

(6) §1101.652(b)(29);

(7) §1101.652(b)(33);

(8) [(7)] 22 TAC §535.21(a);

(9) [(8)] 22 TAC §535.53;

(10) [(9)] 22 TAC §535.65;

(11) [(10)] 22 TAC §535.91(d);

(12) 22 TAC §535.121;

(13) [(11)] 22 TAC §535.154;

(14) [(12)] 22 TAC §535.155; and

(15) [(13)] 22 TAC §535.300.

(d) An administrative penalty range of $500-$3,000 per violation per day may be assessed for violations of the following sections of the Act and Rules:

(1) §§1101.652(a)(4)-(6) [§§1101.652(a)(4)-(5)];

(2) §1101.652(a-1)(2);

(3) §1101.652(b)(1);

(4) §§1101.652(b)(7)-(8);

(5) §1101.652(b)(12);

(6) §1101.652(b)(14);

(7) §1101.652(b)(22);

(8) §1101.652(b)(28);

(9) §§1101.652(b)(30)-(31);

(10) §1101.654(a);

(11) 22 TAC §531.18;

(12) 22 TAC §531.20;

(13) 22 TAC §535.2; [and]

(14) 22 TAC §535.6(c)-(d);

(15) 22 TAC §535.16;

(16) 22 TAC §535.17; and

(17) [(14)] 22 TAC §535.144.

(e) An administrative penalty range of $1,000-$5,000 per violation per day may be assessed for violations of the following sections of the Act and Rules:

(1) §1101.351;

(2) §1101.366(d);

(3) §1101.557(b);

(4) §1101.558;

(5) §§1101.559(a) and (c);

(6) §1101.560;

(7) §1101.561(b);

(8) §1101.615;

(9) §1101.651;

(10) §1101.652(a)(2) [§§1101.652(a)(2) and (6)];

(11) §1101.652(a-1)(1);

(12) §§1101.652(b)(2)-(6);

(13) §§1101.652(b)(9)-(11);

(14) §1101.652(b)(13);

(15) §§1101.652(b)(15)-(21);

(16) §§1101.652(b)(24)-(27);

(17) §1101.652(b)(32) [§§1101.652(b)(32)-(33)];

(18) 22 TAC §535.141(g);

(19) 22 TAC §§535.145 - 535.148; and

(20) 22 TAC §535.156.

(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 August 17, 2018.

TRD-201803576

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 936-3092


SUBCHAPTER R. REAL ESTATE INSPECTORS

22 TAC §§535.212, 535.213, 535.218, 535.223

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.212, Education and Experience Requirements for a License, §535.213, Qualifying Real Estate Inspector Instructors and Courses, §535.218, Continuing Education Required for Renewal, and §535.223, Standard Inspection Report Form, in Subchapter R, Real Estate Inspectors.

The proposed amendments to Subchapter R reorganize and clarify the qualifying education, continuing education, and experience requirements for inspectors; remove unused provisions; allow inspectors to receive continuing education credit for courses applicable to inspectors that are taken to satisfy continuing education requirements for an occupational license issued by another Texas governmental body; and would allow inspectors to remove the TREC logo or substitute an inspector's logo in place of the TREC logo on the standard inspection report form. The proposed amendments are recommended by the Texas Real Estate Inspector Committee.

Kristen Worman, Deputy General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Worman also has determined that for each year of the first five years the amendments as proposed are in effect the public benefits anticipated as a result of enforcing the sections will be requirements that are easier to read and understand; additional options for inspectors to satisfy continuing education requirements; and flexibility when using the standard inspection report form.

For each year of the first five years the proposed amendments are in effect the amendments will not:

--create or eliminate a government program;

--require the creation of new employee positions or the elimination of existing employee positions;

--require an increase or decrease in future legislative appropriations to the agency;

--require an increase or decrease in fees paid to the agency;

--create a new regulation;

--expand an existing regulation;

--increase or decrease the number of individuals subject to the rule's applicability; or

--adversely affect the state's economy.

For each of the first five years the proposed amendments are in effect, the proposed amendments will repeal an existing regulation related to continuing education for inspectors that is no longer used.

Comments on the proposal may be submitted to Kristen Worman, Deputy General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102.

The statute affected by this proposal is Chapter 1102, Texas Occupations Code. No other statute, code or article is affected by the proposed amendments.

§535.212.Education and Experience Requirements for a License.

(a) Educational Requirements for a Real Estate Inspector License. To become licensed as a real estate inspector [or professional inspector,] a person must satisfy [:]

[(1) the education and experience requirements outlined in §1102.108 and §1102.109 of Chapter 1102; or]

[(2) the education requirements outlined in §1102.108 and §1102.109 of Chapter 1102 and the substitute experience requirements established by the Commission pursuant to §1102.111 in subsection (f) or (g) of this section.]

[(b)] [A person may satisfy] the 90-hour education requirement for licensure [as a real estate inspector pursuant to subsection (a)(1) or (2) of this section] by completing the following coursework:

(1) 10 hours in foundations;

(2) 8 hours in framing;

(3) 10 hours in building enclosure;

(4) 10 hours in roof systems;

(5) 8 hours in plumbing systems;

(6) 10 hours in electrical systems;

(7) 10 hours in heating, ventilation, and air conditioning systems;

(8) 8 hours in appliances;

(9) 4 hours in Texas Standards of Practice;

(10) 4 hours in Texas Standard Report Form/Report Writing; and

(11) 8 hours in Texas Legal/Ethics.

(b) [(c) ]Educational Requirements for a Professional Inspector License. To become licensed as a professional inspector, a [A] person must [may] satisfy the 130-hour education requirement for licensure [as a professional inspector pursuant to subsection (a)(1) or (2) of this section] by completing [the following coursework:]

[(1)] the courses required for licensure as a real estate inspector in subsection (a) [(b)] of this section; and

(1) [(2)] 8 additional hours in Texas Standard Report Form/Report Writing;

(2) [(3)] 8 additional hours in non-elective coursework in legal, ethics, SOPs, and report writing as defined in §535.218 of this title; and

(3) [(4)] 24 additional hours in any qualifying [core] inspection subject(s).

(c) Experience Requirements.

(1) [(d)] To meet the experience requirements for licensure [For the purpose of measuring the number of inspections required to receive a license] or to sponsor apprentice inspectors or real estate inspectors, the Commission considers an improvement to real property to be any unit capable of being separately rented, leased or sold, subject to the following restrictions:

(A) [(1)] An inspection of an improvement to real property that includes the structural and equipment/systems of the unit constitutes a single inspection.

[(2) Half credit will be given for an inspection limited to structural components only or to equipment/systems only.]

[(3) No more than 80% of the inspections for which experience credit is given may be limited to structural components only or to equipment/systems components only.]

[(4) A report addressing two or more improvements is considered a single inspection.]

(B) [(5)] The Commission may not give experience credit to the same applicant or professional inspector for more than three [complete or six partial] inspections per day. No more than three applicants may receive credit for the inspection of the same unit within a 30 day period, and no more than three apprentice inspectors may receive credit for an inspection of the same unit on the same day. [(e) For the purpose of satisfying any requirement that an applicant hold a license for a period of time: in order to be eligible for a license as a real estate inspector or professional inspector, the Commission shall not give credit for periods in which a license was on inactive status.]

(C) An applicant for a real estate inspector license must have:

(i) been licensed as an apprentice inspector on active status for a total of at least three months within the 12 month period before [prior to] the filing of the application ; and[.]

(ii) completed 25 inspections.

(D) An applicant for a professional inspector license must have:

(i) been licensed as an real estate inspector on active status for a total of at least 12 months within the 24 month period and before [prior to] the filing of the application; and[.]

(ii) completed 175 inspections.

(d) Substitute Experience Requirements for a Real Estate Inspector License.

(1) [(f)] A person may satisfy the substitute experience requirements for licensure as a real estate inspector [pursuant to subsection (a)(2) of this section] as follows:

[(1)]

(A) complete a total of 32 additional hours of qualifying [core] inspection coursework, which must include the following:

(i) 8 hours in Texas Standard Report Form/Report Writing;

(ii) 8 hours in non-elective coursework in legal, ethics, SOPs, and report writing as defined in §535.218 of this title;

(iii) 16 hours in any qualifying [core] inspection subject(s); and

(B) complete [either]:

(i) [complete] 20 hours of field work through ride along inspection course sessions as defined in §535.213(g) [§535.218] of this title; [, except there may be up to 10 students per session] and

(ii) 12 hours of an approved interactive experience training module.[;or]

[(ii) complete 8 hours of field work through ride along inspection course sessions as defined in §535.218 of this title, except there may be up to 10 students per session and 30 hours of an approved interactive experience training module; or]

(2) [(iii)] Exceptions. The Commission may award substitute experience credit to an applicant who has not met the additional qualifying course requirements under this subsection if:

(A) the applicant:

(i) has [have] three years of experience in a field directly related to home inspection, including but not limited to installing, servicing, repairing or maintaining the structural, mechanical and electrical systems found in improvements to real property; and

(ii) provides to the Commission [provide] two affidavits from persons who have personal knowledge of the applicant's work, detailing the time and nature of the applicant's relevant experience; or[.]

(B) [(2)] The applicant: [A person who]

(i) has at least two years of experience as an active practicing licensed or registered architect, professional engineer, or engineer-in-training and has completed[must: (A) complete a total of] 16 additional hours of qualifying [core] inspection coursework, which must include the following:

(I) [(i)] 8 hours in Texas Standard Report Form/Report Writing; and

(II) [(ii)] 8 hours in non-elective coursework in legal, ethics, SOPs, and report writing as defined in §535.218 of this title; and

(ii) [(B)] submits [submit] a license history from the regulatory agency that issued the license or registration documenting the period of practice as a licensed or registered architect, professional engineer, or engineer-in-training.

(e) Substitute Experience Requirements for a Professional Inspector License.

(1) [(g)] A person may satisfy the substitute experience requirements for licensure as a professional inspector [pursuant to subsection (a)(2) of this section] as follows:

[(1)

(A) complete a total of 200 additional hours of qualifying [core] inspection coursework, which must include the following:

(i) 30 hours in foundations;

(ii) 30 hours in framing;

(iii) 24 hours in building enclosure;

(iv) 24 hours in roof systems;

(v) 16 hours in plumbing systems;

(vi) 24 hours in electrical systems;

(vii) 24 hours in heating, ventilation, and air conditioning systems;

(viii) 6 hours in appliances;

(ix) 8 hours in non-elective coursework in legal, ethics, SOPs, and report writing as defined in §535.218 of this title;

(x) 8 hours in Standard Report Form/Report writing; and

(xi) 6 hours in any core inspection subject(s); and

(B) complete [either]:

(i) [complete] 40 hours of field work through ride along inspection course sessions as defined in §535.213(g) of this title;[, except there may be up to 10 students per session] and

(ii) 24 hours of an approved interactive experience training module.[;]

[(ii) complete 16 hours of field work through ride along inspection course sessions as defined in §535.218 of this title, except there may be up to 10 students per session and 60 hours of an approved interactive experience training module;]

(2) [(iii)] Exceptions. The Commission may award substitute experience credit to an applicant who has not met the additional qualifying course requirements under this subsection if:

(A) the applicant:

(i) has[have] five years of experience in a field directly related to home inspection, including but not limited to installing, servicing, repairing or maintaining the structural, mechanical and electrical systems found in improvements to real property;[,] and

(ii) provides to the Commission [provide] two affidavits from persons who have personal knowledge of the applicant's work, detailing the time and nature of the applicant's relevant experience; or[.]

(B) [(2)] the applicant [A person who] has:

(i) at least three years of experience as an active practicing licensed or registered architect, professional engineer, or engineer-in-training, who[must: (A)has completed complete] a total of 16 additional hours of qualifying [core] inspection coursework, which must include the following:

(I) [(i)] 8 hours in Texas Standard Report Form/Report Writing; and

(II) [(ii)] 8 hours in non-elective coursework in legal, ethics, SOPs, and report writing as defined in §535.218 of this title; and

(ii) [(B)] submits [submit] a license history from the regulatory agency that issued the license or registration documenting the period of practice as a licensed or registered architect, professional engineer, or engineer-in-training.

(f) [(h)] For purposes of this section:

(1) "qualifying [core] inspection coursework" means course work on the subject matters listed in §535.213(e) of this title; and

(2) "interactive experience training module" means education that provides regular and substantive interaction between the students and the instructor, either synchronously or asynchronously, and is delivered:

(A) in-person to students in the classroom; or

(B) through the use of one or more of the following technologies:

(i) the internet;

(ii) one-way and two-way transmissions through open broadcast, closed circuit, cable, microwave, broadband lines, fiber optics, satellite or wireless communications devices;

(iii) audio conferencing; or

(iv) video cassettes, DVDs, and CD-ROMs, if the cassettes, DVDs, or CD-ROMs are used in a course in conjunction with any of the technologies listed in subparagraphs (B)(i) through (B)(iii) of this paragraph.

§535.213.Qualifying Real Estate Inspector Instructors and Courses.

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

(c) A classroom course may include up to 50% of total course time for appropriate field trips relevant to the course topic. Field trips may not be included as part of distance education [correspondence or alternative] delivery courses.

(d) - (f) (No change.)

(g) Ride-along inspection course for qualifying education.

(1) A ride-along inspection course must:

(A) at a minimum consist of one full residential property inspection;

(B) review applicable standards of practice and departure provisions contained in §§535.227 - 535.233 of this title; and

(C) consist of no more than two students per instructor.

(2) The instructor of a ride-along inspection course may:

(A) review report writing;

(B) deliver a notice regarding the ride-along session on a form approved by the Commission to the prospective buyer or seller of the home being inspected.

§535.218.Continuing Education Required for Renewal.

(a) Continuing education required for renewal.

(1) Before [Prior to] renewal of an [a real estate inspector or professional] inspector license, a license holder must take the 32 hours of continuing education which shall include the following:

(A) 24 hours of qualifying course subjects as described in §535.213(e)(1) - (8), (11) and (12) of this title, with a maximum of 16 hours on any one single subject; and

(B) eight hours of non-elective coursework in legal, ethics, SOPs, and report writing consisting of the following coursework:

(i) 4 hours of Standards of Practice Review; and

(ii) 4 hours of Legal and Ethics.

(2) An [A real estate inspector or professional] inspector who files an application for reinstatement of an expired license within two years of the expiration date of the previous license, must provide evidence satisfactory to the Commission that the applicant has completed any continuing education that would have been otherwise required for timely renewal of the previous license had that license not expired

(b) Receiving continuing education credit for ride-along [Ride-along] inspection course.

[(1)] Up to eight hours of continuing education credit per two year license period may [can] be given to a license holder for completion of a ride-along inspection course as defined in subsection 535.213(g) of this title.

[(2) At a minimum, a ride-along inspection course must:]

[(A) consist of one full residential property inspection; and]

[(B) review applicable standards of practice and departure provisions contained in §§535.227 - 535.233 of this title.]

[(3) In order to qualify for real estate inspector continuing education credit, a ride-along inspection course shall consist of no more than two students per session.]

[(4) The instructor of a ride-along inspection course may:]

[(A) review report writing;]

[(B) deliver a notice regarding the ride-along session on a form approved by the Commission to the prospective buyer or seller of the home being inspected.]

(c) - (d) (No change.)

(e) Continuing education credit for course taken outside of Texas. An inspector may receive continuing education elective credit for a course taken to satisfy the continuing education requirements of a country, territory, or state other than Texas if:

(1) the [real estate inspector or professional] inspector licensed in Texas held an active inspector license in a country, territory, or state other than Texas at the time the course was taken;

(2) the course was approved for continuing education credit for an inspector license by a country, territory, or state other than Texas at the time the course was taken;

(3) the successful completion of the course has been evidenced by a course completion certificate, a letter from the provider or such other proof satisfactory to the Commission;

(4) the subject matter of the course was predominately devoted to a subject acceptable for continuing education credit for a [real estate inspector or professional] inspector licensed in Texas; and

(5) the [real estate inspector or professional] inspector licensed in Texas has filed a Continuing Education (CE) Credit Request for an Out of State Course, with the Commission.

(f) (No change.)

(g) Continuing education credit for attendance at a meeting of the Texas Real Estate Inspector Committee. An [A real estate inspector or professional] inspector licensed in Texas may receive up to four hours of continuing education elective credit per license period for attendance in person at the February meeting of the Texas Real Estate Inspector Committee.

(h) Continuing education credit for courses taken by persons who hold another occupational license issued by a governmental body in Texas. An inspector licensed in Texas may receive continuing education credit for a course taken to satisfy the continuing education requirements for another occupational license, if:

(1) the inspector files the applicable form with the Commission;

(2) the inspector holds one of the following occupational licenses, including but not limited to:

(A) plumber;

(B) electrician;

(C) architect;

(D) professional engineer;

(E) air conditioner and refrigeration technician; or

(F) structural pest control applicator or technician;

(3) at the time the course was taken:

(A) the inspector held an active occupational license issued by a governmental body in Texas; and

(B) the course was approved for continuing education credit for the other occupational license;

(4) the inspector demonstrates successful completion of the course by submitting:

(A) a course completion certificate;

(B) a letter from the provider; or

(C) other proof satisfactory to the Commission; and

(5) the primary subject matter of the course was a subject acceptable for continuing education credit for an inspector licensed in Texas.

§535.223.Standard Inspection Report Form.

The Commission adopts by reference Property Inspection Report Form REI 7-5, approved by the Commission for use in reporting inspections results. This document is published by and available from the Commission website: www.trec.texas.gov, or by writing to the Commission at Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

(1) Except as provided by this section, inspections performed for a prospective buyer or prospective seller of substantially complete one-to-four family residential property shall be reported on Form REI 7-5 adopted by the Commission ("the standard form").

(2) Inspectors may reproduce the standard form by computer or from printed copies obtained from the Commission. Except as specifically permitted by this section, the inspector shall reproduce the text of the standard form verbatim and the spacing, borders and placement of text on the page must appear to be identical to that in the printed version of the standard form.

(3) An inspector may make the following changes to the standard form:

(A) delete the line for name and license number, of the sponsoring inspector, if the inspection was performed solely by a professional inspector;

(B) change the typeface; provided that it is no smaller than a 10 point font;

(C) change the color of the typeface and checkboxes;

(D) use legal sized (8-1/2" by 14") paper;

(E) add a cover page to the report form;

(F) add footers to each page of the report except the first page and may add headers to each page of the report;

(G) place the property identification and page number at either the top or bottom of the page;

(H add subheadings under items, provided that the numbering of the standard items remains consistent with the standard form;

(I) list other items in the corresponding appropriate section of the report form and additional captions, letters, and check boxes for those items;

(J) delete inapplicable subsections of Section VI., Optional Systems, and re-letter any remaining subsections;

(K) delete Subsection L., Other, of Section I., Structural Systems; Subsection E., Other of Section IV, Plumbing Supply, Distribution Systems and Fixtures and Subsection I., Other of Section V., Appliances;

(L) as the inspector deems necessary:

(i) allocate such space for comments in:

(I) the "Additional Information Provided by the Inspector" section; and

(II) each section provided for comments for each inspected item;

(ii) attach additional pages of comments; or

(iii) both;

(M) include a service agreement/inspection contract or contractual terms between the inspector and a client with the standard form under the "Additional Information Provided by the Inspector" section or as an attachment to the standard form; [and]

(N) attach additional pages to the form if:

(i) it is necessary to report the inspection of a component, or system not contained in the standard form; or

(ii) the space provided on the form is inadequate for a complete reporting of the Inspection; and[.]

(O) Remove the Commission's logo or substitute the inspector's logo in place of the Commission's logo.

(4) The inspector shall renumber the pages of the standard form to correspond with any changes made necessary due to adjusting the space for comments or adding additional items and shall number all pages of the report, including any addenda.

(5) The inspector shall indicate, by checking the appropriate boxes on the form, whether each item was inspected, not inspected, not present, or deficient and explain the findings in the corresponding section in the body of the report form.

(6) This section does not apply to the following:

(A) re-inspections of a property performed for the same client;

(B) inspections performed for or required by a lender or governmental agency;

(C) inspections for which federal or state law requires use of a different report;

(D) quality control construction inspections of new homes performed for builders, including phased construction inspections, inspections performed solely to determine compliance with building codes, warranty or underwriting requirements, or inspections required by a municipality and the builder or other entity requires use of a different report, and the first page of the report contains a notice either in bold or underlined reading substantially similar to the following: "This report was prepared for a builder or other entity in accordance with the builder's requirements. The report is not intended as a substitute for an inspection of the property by an inspector of the buyer's choice. Standard inspections performed by a license holder and reported on Commission promulgated report forms may contain additional information a buyer should consider in making a decision to purchase." If a report form required for use by the builder or builder's employee does not contain the notice, the inspector may attach the notice to the first page of the report at the time the report is prepared by the inspector;

(E) an inspection of a building or addition that is not substantially complete; or

(F) inspections of a single system or component as outlined in clause (ii) of this subparagraph, provided that the first page of the report contains a notice either in bold or underlined reading substantially similar to the following: "This report was prepared for a buyer or seller in accordance with the client's requirements. The report addresses a single system or component and is not intended as a substitute for a complete standard inspection of the property. Standard inspections performed by a license holder and reported on a Commission promulgated report form may contain additional information a buyer should consider in making a decision to purchase."

(i) If the client requires the use of a report form that does not contain the notice, the inspector may attach the notice to the first page of the report at the time the report is prepared by the inspector.

(ii) An inspection is considered to be of a single system or component if the inspection only addresses one of the following or a portion thereof:

(I) foundation;

(II) framing/structure, as outlined in §535.213(e)(2) of this title;

(III) building enclosure;

(IV) roof system;

(V) plumbing system;

(VI) electrical system;

(VII) HVAC system;

(VIII) a single appliance; or

(IX) a single optional system as stated in the Standards of Practice.

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 August 17, 2018.

TRD-201803577

Kristen Worman

Deputy General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 936-3902


CHAPTER 537. PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS

22 TAC §§537.45, 537.47, 537.56

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §537.45, Standard Contract Form TREC No. 38-5, §537.47, Standard Contract Form TREC No. 40-7, and §537.56, Standard Contract Form TREC No. 49-0 in Chapter 537, Professional Agreements and Standard Contracts.

Texas real estate license holders are generally required to use forms promulgated by TREC when negotiating contacts for the sale of real property. These forms are drafted and recommended for adoption by the Texas Real Estate Broker-Lawyer Committee, an advisory body consisting of six attorneys appointed by the President of the State Bar of Texas, six brokers appointed by TREC, and one public member appointed by the governor.

The Broker Lawyer Committee recommended revisions to the contract addenda forms adopted by reference under the rules set out in Chapter 537. The revisions to the Notice of Buyer's Termination of Contract adds a requirement to include lender's written notice setting forth the reasons Property Approval was not obtained when terminating the contract for that reason. A new and an existing item that grant buyer termination rights under the contracts or addenda, and new notice language were also added.

The Committee rewrote Paragraph 2B, Property Approval, to clarify the intent of the paragraph and to include a timeframe for buyer to give seller notice and evidence of the lender's determination. The Committee also recommended a few clarifying revisions to the Third Party Financing Addendum and reformatted it so that it was consistent with other Commission promulgated addenda and changed the last sentence of Paragraph 5B so that it states "...brokers and sales agents provided under Broker Information."

The Committee revised the Addendum Concerning Right to Terminate Due to Lender's Appraisal to improve understanding and use of the form after receiving comments that it was hard to understand.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be better protections for consumers and increased clarity and understanding of the contract addenda.

For each year of the first five years the proposed amendments are in effect the amendments will not:

- create or eliminate a government program;

- require the creation of new employee positions or the elimination of existing employee positions;

- require an increase or decrease in future legislative appropriations to the agency;

- require an increase or decrease in fees paid to the agency;

- create a new regulation;

- expand, limit or repeal an existing regulation;

- increase or decrease the number of individuals subject to the rule's applicability;

- positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by these amendments are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the amendments.

§537.45.Standard Contract Form TREC No. 38-6[38-5].

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 38-6 [38-5] approved by the Commission in 2018 [2015] for use as a buyer's notice of termination of contract.

§537.47.Standard Contract Form TREC No. 40-8 [40-7].

The Texas Real Estate Commission (Commission) adopts by reference standard contract form, TREC No. 40-8 [40-7] approved by the Commission in 2018 [2015] for use as an addendum to be added to promulgated forms of contracts when there is a condition for third party financing.

§537.56.Standard Contract Form TREC No. 49-1[49-0].

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 49-1[49-0] approved by the Commission in 2018 for use as an addendum to be added to promulgated forms concerning the right to terminate due to lender's appraisal.

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 August 17, 2018.

TRD-201803578

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: September 30, 2018

For further information, please call: (512) 936-3092