PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION
CHAPTER 60. PROCEDURAL RULES OF THE COMMISSION AND THE DEPARTMENT
SUBCHAPTER H. COMPLAINT HANDLING
The Texas Commission of Licensing and Regulation (Commission) adopts new rules at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter H, §§60.220 - 60.222, regarding inspection provisions of the Procedural Rules of the Commission and the Department, without changes to the proposed text as published in the October 14, 2022, issue of the Texas Register (47 TexReg 6733). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 60, implement Texas Occupations Code, Chapter 51, Texas Department of Licensing and Regulation.
House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Department, added new inspection provisions to Occupations Code, Chapter 51, the Department's enabling statute (see HB 1560, Article 1, Section 1.05). HB 1560 added new §51.211 to Chapter 51, requiring the department to conduct risk-based inspections that prioritize inspections based on key risk factors. HB 1560 also repealed provisions from several program statutes that conflicted with this new provision.
The adopted rules provide default procedures for any inspection the Department is authorized to conduct under law and are necessary to implement Texas Occupations Code §51.211. The adopted rules provide, among other things, that: (1) the department may perform inspections with or without advance notice to ensure compliance with statute or rule, or as a result of a complaint; (2) inspections will be performed during the regular operating hours of the location being inspected; (3) upon completion of an inspection, the license holder, applicant, or representative will be provided with the results of the inspection in writing; (4) the department may use alternative inspection methods, including the use of videoconference technology, instead of conducting an in-person inspection; and (5) a license holder, applicant, or other person must cooperate in the performance of an inspection. Different or more specific procedures may be provided in individual program rules.
SECTION-BY-SECTION SUMMARY
The adopted rules create new §60.220 within Chapter 60, Subchapter H. Section 60.220 simply states that the Department shall conduct inspections as provided by Occupations Code §51.211 and §51.351, Chapter 60, and the statutes and rules applicable to the agency's regulatory programs.
The adopted rules also create new §60.221 within Chapter 60, Subchapter H. Section 60.221 includes the default procedures to be used for inspections performed by the Department. Notably, all of the provisions included in §60.221 were drawn from existing program rules including the Department's Driver Education and Safety, Barbering, Cosmetologists, Massage Therapy, Orthotists and Prosthetists, Vehicle Towing and Booting, Vehicle Storage Facilities, and Used Automotive Parts Recyclers programs.
Subsection (a) states that §60.221 applies to any inspection the Department is authorized to conduct pursuant to law. Subsection (b) states that the Department may conduct inspections with or without advance notice to ensure compliance with statute or rule, or as a result of a complaint. Subsection (c) states that inspections will be conducted during the normal operating hours of the location being inspected. Subsection (d) requires the Department to provide a license holder, applicant, or representative thereof a written inspection report.
Subsection (e) of adopted new §60.221 provides that when an inspection report requires corrective action on the part of the license holder or applicant, the Department will provide the license holder, applicant, or representative a list of any required corrective actions and a timeline for completing each. Subsection (e) also provides that the license holder or applicant must complete any required corrective actions within the time period specified by the Department, and that the Department may grant extensions to this time period at its discretion. Subsection (f) states that the Department may assess administrative penalties, administrative sanctions, or both against a license holder or applicant who fails to complete any required corrective actions within this time period.
Subsection (g) of adopted new §60.221 authorizes the Department to use alternative methods, including videoconference or similar technology, to conduct inspections remotely. Lastly, subsection (h) provides that more specific provisions regarding inspections in individual program statutes or rules will prevail over §60.221.
The adopted rules also create new §60.222, entitled "Cooperation with Inspections." Subsection (a) requires a license holder, applicant, or other person to cooperate with an authorized Department inspector during an inspection. Subsection (b) requires a license holder, applicant, or other person to provide a Department inspector with records, notices, or other documents requested by the inspector.
Subsection (c) of adopted new §60.222 prohibits a license holder, applicant, or other person from avoiding, refusing to permit, or failing to cooperate in a Department inspection; interfering with a Department inspection; or threatening or intimidating a Department inspector in connection with an inspection.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 14, 2022, issue of the Texas Register (47 TexReg 6733). The public comment period closed on November 28, 2022. The Department received comments from six interested parties on the proposed rules, as well as one comment unrelated to the proposed rules. The public comments are summarized below.
Comment: One commenter asked whether the intent of the proposed rules was to penalize a license holder for interfering with an inspection if they pushed back against an inspector who behaved inappropriately during an inspection.
Department Response: The Department appreciates the question. The Department disagrees with this comment since the proposed rule is in no way intended to punish licensees for alleged inappropriate behavior by a Department inspector. The Department did not make any changes to the proposed rules in response to this comment.
Comment: One commenter requested that the proposed rules be changed to include a provision stating that "Every license holder, applicant, or other person subject to an inspection brought about from a complaint shall be given a copy of the entire unredacted complaint complete with the inspection result and resolution."
Department Response: The Department appreciates the comment. However, the comment is outside the scope of the proposed rules, which deal with the procedures to be followed by the Department in inspecting an establishment, and do not cover the complaint and resolution process. Thus, the Department disagrees with this comment. The Department did not make any changes to the proposed rules in response to this comment.
Comment: One commenter asked whether the proposed rules applied to General Land Office residential inspectors.
Department Response: The Department appreciates the question. The proposed rules apply only to Department inspectors. The Department disagrees with this comment since the proposed rules apply only to entities subject to inspection by TDLR. The Department did not make any changes to the proposed rules in response to this comment.
Comment: One commenter expressed concern about the Department conducting inspections without advance notice.
Department Response: The Department appreciates the comment. The Department disagrees with this comment because unannounced inspections are a key tool in the Department's ability to regulate establishments and professions. The Department did not make any changes to the proposed rules in response to this comment.
Comment: One commenter stated that moving to risk-based inspections rather than periodic inspections was ill-advised. The commenter also stated that virtual inspections should not be used to determine the cleanliness of an establishment.
Department Response: The Department appreciates the comment. The Department is required to adopt a risk-based inspection model pursuant to Section 51.211, Occupations Code. Thus, the Department disagrees with this comment. The Department did not make any changes to the proposed rules in response to this comment.
Comment: One commenter contested the Department's finding that the proposed rules would not adversely affect small or micro-businesses.
Department Response: The Department appreciates the comment but stands by its previous analysis. Thus, the Department disagrees with this comment. The Department did not make any changes to the proposed rules in response to this comment.
COMMISSION ACTION
At its meeting on December 6, 2022, the Commission adopted the proposed rules as published in the TexasRegister.
STATUTORY AUTHORITY
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 455, 605, 2303, 2308, 2309, and Texas Education Code, Chapter 1001. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205182
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 84, Subchapter I, §84.100 and §84.101; and the repeal of an existing rule at Subchapter I, §84.102, regarding the Driver Education Safety program, without changes to the proposed text as published in the October 14, 2022, issue of the Texas Register (47 TexReg 6735). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 84, implement Texas Education Code, Chapter 1001, Driver and Traffic Safety Education.
House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Department, added new inspection provisions to Occupations Code, Chapter 51, the Department's enabling statute (see HB 1560, Article 1, Section 1.05). HB 1560 added new §51.211 to Chapter 51, requiring the department to conduct risk-based inspections that prioritize inspections based on key risk factors. HB 1560 also repealed provisions from several program statutes that conflicted with this new provision.
The adopted rules remove periodic inspections from the Driver Education and Safety program rules and are necessary to implement Texas Occupations Code §51.211.
SECTION-BY-SECTION SUMMARY
The adopted rules amend §84.100(a) to remove periodic inspection requirements and to add language stating that driver education providers (formerly referred to as "driver education schools") will be inspected in accordance with Chapter 51, Occupations Code, and new rules governing inspections within 16 TAC, Chapter 60, Subchapter H. The adopted rules also repeal subsections (b) through (d) of § 84.100, as that subject matter will be covered by the inspections rules contained in Chapter 60, Subchapter H. In light of the repeal of subsections (b) through (d), current subsection (e) is being changed to (b).
The adopted rules amend §84.101 to change references to "school" to "provider" in subsections (a) and (b), and to repeal subsections (d) through (f), as that subject matter will be covered by the inspections rules contained in Chapter 60, Subchapter H.
Lastly, the adopted rules repeal §84.102 in its entirety. Section 84.102 requires annual inspections of driver education providers, and repealing this section is necessary to implement §51.211, Occupations Code.
The new rules regarding inspections under Chapter 60, Subchapter H, are also currently being adopted separately in this issue of the Texas Register. Those adopted rules provide, among other things, that: (1) the department may perform inspections with or without advance notice to ensure compliance with statute or rule, or as a result of a complaint; (2) inspections will be performed during the regular operating hours of the location being inspected; (3) upon completion of an inspection, the license holder, applicant, or representative will be provided with the results of the inspection in writing; (4) the department may use alternative inspection methods, including the use of videoconference technology, instead of conducting an in-person inspection; and (5) a license holder, applicant, or other person must cooperate in the performance of an inspection.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 14, 2022, issue of the Texas Register (47 TexReg 6735). The public comment period closed on November 28, 2022. The Department received comments from one interested party on the proposed rules. The public comment is summarized below.
Comment: One commenter asked the Department to identify the key risk factors to be used in prioritizing inspections.
Department Response: The Department appreciates the comment. Currently, the key risk factors to be used in prioritizing inspections include: (1) whether a license holder has previously violated a law establishing a regulatory program administered by the department or a rule or order of the commission or executive director; (2) the number of violations committed by a license holder; (3) when the license holder's establishment was last inspected; (4) the nature of any violations found in previous inspections; and (5) whether the license holder has made or acknowledged corrections required pursuant to a previous inspection. The Department did not make any changes to the proposed rules in response to this comment.
COMMISSION ACTION
At its meeting on December 6, 2022, the Commission adopted the proposed rules without changes as published in the Texas Register.
SUBCHAPTER I. INSPECTIONS
STATUTORY AUTHORITY
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapter 51, and Texas Education Code, Chapter 1001. No other statutes, articles, or codes are affected by the proposed repeal.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205190
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
STATUTORY AUTHORITY
The statutory provisions affected by the adopted repeal are those set forth in Texas Occupations Code, Chapter 51, and Texas Education Code, Chapter 1001. No other statutes, articles, or codes are affected by the proposed repeal.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205216
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 85, §85.450; and the repeal of existing rules at §85.451 and §85.453, regarding the Vehicle Storage Facilities program, without changes to the proposed text as published in the October 14, 2022, issue of the Texas Register (47 TexReg 6737). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 85, implement Texas Occupations Chapter 2303, Vehicle Storage Facility Act.
House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Department, added new inspection provisions to Occupations Code, Chapter 51, the Department's enabling statute (see HB 1560, Article 1, Section 1.05). HB 1560 added new §51.211 to Chapter 51, requiring the department to conduct risk-based inspections that prioritize inspections based on key risk factors. HB 1560 also repealed provisions from several program statutes that conflicted with this new provision.
The adopted rules remove periodic inspections from the Vehicle Storage Facility program rules and are necessary to implement Texas Occupations Code §51.211.
SECTION-BY-SECTION SUMMARY
The proposed rules amend §85.450(a) to remove periodic inspection requirements and to add language stating that towing companies will be inspected in accordance with Chapter 51, Occupations Code, and new rules governing inspections within 16 TAC, Chapter 60, Subchapter H. Additionally, the last sentence of subsection (a) has been moved into new subsection (b).
The proposed rules also repeal subsections (b) through (d) of § 85.450, as that subject matter will be covered by the inspections rules contained in Chapter 60, Subchapter H.
The proposed rules also repeal §85.451 and §85.453 in their entirety to remove periodic inspection requirements and to remove concepts that will be covered by the inspections rules contained in Chapter 60, Subchapter H. Repealing these sections is necessary to implement §51.211, Occupations Code.
The new rules regarding inspections under Chapter 60, Subchapter H, are also currently being proposed separately in this issue of the Texas Register. Those proposed rules provide, among other things, that: (1) the department may perform inspections with or without advance notice to ensure compliance with statute or rule, or as a result of a complaint; (2) inspections will be performed during the regular operating hours of the location being inspected; (3) upon completion of an inspection, the license holder, applicant, or representative will be provided with the results of the inspection in writing; (4) the department may use alternative inspection methods, including the use of videoconference technology, instead of conducting an in-person inspection; and (5) a license holder, applicant, or other person must cooperate in the performance of an inspection
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 14, 2022, issue of the Texas Register (67 TexReg 6737). The public comment period closed on November 28, 2022. The Department received comments from one interested party on the proposed rules. The public comments are summarized below.
Comment: One commenter stated that in order to retrieve a vehicle from a storage facility, a person should be required to have a current registration, insurance, and driver’s license.
Department Response: The Department appreciates the comment. The Department disagrees with the comment because it is outside the scope of the present rulemaking. The Department did not make any changes to the proposed rules as a result of this comment.
COMMISSION ACTION
At its meeting on December 6, 2022, the Commission adopted the proposed rules as published in the TexasRegister.
STATUTORY AUTHORITY
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 2303.
No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205205
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
STATUTORY AUTHORITY
The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51 and 2303.
No other statutes, articles, or codes are affected by the adopted repeals.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205206
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 86, §86.450; and adopts the repeal of existing rules at §86.451 and §86.453, regarding the Vehicle Towing and Booting program, without changes to the proposed text as published in the October 14, 2022, issue of the Texas Register (47 TexReg 6739). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 86, implement Texas Occupations Code, Chapter 2308, Vehicle Towing and Booting.
House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Department, added new inspection provisions to Occupations Code, Chapter 51, the Department's enabling statute (see HB 1560, Article 1, Section 1.05). HB 1560 added new §51.211 to Chapter 51, requiring the department to conduct risk-based inspections that prioritize inspections based on key risk factors. HB 1560 also repealed provisions from several program statutes that conflicted with this new provision.
The adopted rules remove periodic inspections from the Vehicle Towing and Booting program rules and are necessary to implement Texas Occupations Code §51.211.
SECTION-BY-SECTION SUMMARY
The adopted rules amend §86.450(a) to remove periodic inspection requirements and to add language stating that towing companies will be inspected in accordance with Chapter 51, Occupations Code, and new rules governing inspections within 16 TAC, Chapter 60, Subchapter H. Additionally, the last sentence of subsection (a) has been moved into new subsection (b).
The adopted rules also repeal subsections (b) through (d) of §86.450, as that subject matter will be covered by the inspections rules contained in Chapter 60, Subchapter H.
The adopted rules also repeal §86.451 and §86.453 in their entirety to remove periodic inspection requirements and to remove concepts that will be covered by the inspections rules contained in Chapter 60, Subchapter H. Repealing these sections is necessary to implement §51.211, Occupations Code.
The new rules regarding inspections under Chapter 60, Subchapter H, are also currently being adopted separately in this issue of the Texas Register. Those adopted rules provide, among other things, that: (1) the department may perform inspections with or without advance notice to ensure compliance with statute or rule, or as a result of a complaint; (2) inspections will be performed during the regular operating hours of the location being inspected; (3) upon completion of an inspection, the license holder, applicant, or representative will be provided with the results of the inspection in writing; (4) the department may use alternative inspection methods, including the use of videoconference technology, instead of conducting an in-person inspection; and (5) a license holder, applicant, or other person must cooperate in the performance of an inspection.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 14, 2022, issue of the Texas Register (47 TexReg 6739). The public comment period closed on November 28, 2022. The Department received two comments unrelated to the proposed rules.
COMMISSION ACTION
At its meeting on December 6, 2022, the Commission adopted the proposed rules as published in the TexasRegister.
STATUTORY AUTHORITY
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 2308. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205201
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
STATUTORY AUTHORITY
The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51 and 2308. No other statutes, articles, or codes are affected by the adopted repeals.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205202
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 87, §87.44; and the repeal of existing rules at §87.45 and §87.47, regarding the Used Automotive Parts Recyclers program, without changes to the proposed text as published in the October 14, 2022, issue of the Texas Register (47 TexReg 6740). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 87, implement Texas Occupations Code, Chapter 2309, Used Automotive Parts Recyclers program.
House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Department, added new inspection provisions to Occupations Code, Chapter 51, the Department's enabling statute (see HB 1560, Article 1, Section 1.05). HB 1560 added new §51.211 to Chapter 51, requiring the department to conduct risk-based inspections that prioritize inspections based on key risk factors. HB 1560 also repealed provisions from several program statutes that conflicted with this new provision.
The adopted rules remove periodic inspections from the Used Automotive Parts Recyclers program rules and are necessary to implement Texas Occupations Code §51.211.
SECTION-BY-SECTION SUMMARY
The adopted rules amend §87.44 to remove periodic inspection requirements and to add language stating that used automotive parts recycling businesses will be inspected in accordance with Chapter 51, Occupations Code, and new rules governing inspections within 16 TAC, Chapter 60, Subchapter H. Additionally, the last sentence of subsection (a) has been moved into new subsection (b).
The adopted rules also repeal subsections (b) through (e) of §87.44, as that subject matter will be covered by the inspections rules contained in Chapter 60, Subchapter H.
The adopted rules also repeal §87.45 and §87.47 in their entirety to remove periodic inspection requirements and to remove concepts that will be covered by the inspections rules contained in Chapter 60, Subchapter H. Repealing these sections is necessary to implement §51.211, Occupations Code.
The new rules regarding inspections under Chapter 60, Subchapter H, are also currently being adopted separately in this issue of the Texas Register. Those adopted rules provide, among other things, that: (1) the department may perform inspections with or without advance notice to ensure compliance with statute or rule, or as a result of a complaint; (2) inspections will be performed during the regular operating hours of the location being inspected; (3) upon completion of an inspection, the license holder, applicant, or representative will be provided with the results of the inspection in writing; (4) the department may use alternative inspection methods, including the use of videoconference technology, instead of conducting an in-person inspection; and (5) a license holder, applicant, or other person must cooperate in the performance of an inspection.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 14, 2022, issue of the Texas Register (47 TexReg 6740). The public comment period closed on November 28, 2022. The Department received one comment unrelated to the proposed rules.
COMMISSION ACTION
At its meeting on December 6, 2022, the Commission adopted the proposed rules as published in the TexasRegister.
STATUTORY AUTHORITY
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 2309. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205203
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
STATUTORY AUTHORITY
The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51 and 2309. No other statutes, articles, or codes are affected by the adopted repeals.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205204
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 114, §114.29, regarding the Orthotists and Prosthetists program, without changes to the proposed text as published in the October 14, 2022, issue of the Texas Register (47 TexReg 6742). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 114, implement Texas Occupations Code, Chapter 605, Orthotists and Prosthetists.
House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Department, added new inspection provisions to Occupations Code, Chapter 51, the Department's enabling statute (see HB 1560, Article 1, Section 1.05). HB 1560 added new §51.211 to Chapter 51, requiring the department to conduct risk-based inspections that prioritize inspections based on key risk factors. HB 1560 also repealed provisions from several program statutes that conflicted with this new provision.
The adopted rules remove periodic inspections from the Orthotists and Prosthetists program rules and are necessary to implement Texas Occupations Code §51.211.
SECTION-BY-SECTION SUMMARY
The adopted rules amend §114.29(h) to remove periodic inspection requirements and to add language stating that facilities will be inspected in accordance with Chapter 51, Occupations Code, and new rules governing inspections within 16 TAC, Chapter 60, Subchapter H. The adopted rules also repeal former subsections (h)(1) through (h)(6) of §114.29, as that subject matter will be covered by the inspections rules contained in Chapter 60, Subchapter H.
The adopted rules also change the title of §114.29 to "Accreditation and Inspection of Facilities" (emphasis added).
The new rules regarding inspections under Chapter 60, Subchapter H, are also currently being adopted separately in this issue of the Texas Register. Those adopted rules provide, among other things, that: (1) the department may perform inspections with or without advance notice to ensure compliance with statute or rule, or as a result of a complaint; (2) inspections will be performed during the regular operating hours of the location being inspected; (3) upon completion of an inspection, the license holder, applicant, or representative will be provided with the results of the inspection in writing; (4) the department may use alternative inspection methods, including the use of videoconference technology, instead of conducting an in-person inspection; and (5) a license holder, applicant, or other person must cooperate in the performance of an inspection.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 14, 2022, issue of the Texas Register (47 TexReg 6742). The public comment period closed on November 28, 2022. The Department did not receive any comments from interested parties on the proposed rules.
COMMISSION ACTION
At its meeting on December 6, 2022, the Commission adopted the proposed rules without changes as published in the Texas Register.
STATUTORY AUTHORITY
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 605. No other statutes, articles, or codes are affected by the proposed rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205197
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 114, §114.50, regarding the Orthotists and Prosthetists program, without changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5564). The rule will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 114, implement Texas Occupations Code, Chapter 605, Orthotists and Prosthetists.
The adopted rule permits licensed orthotists and prosthetists to claim continuing education (CE) credit for completing the human trafficking prevention training required by Occupations Code, Chapter 116, and the jurisprudence examination required for initial licensure by Department rules. The adopted rule is necessary to expand the categories of CE credit in the existing Continuing Education rule. The changes are a result of recommendations from the Orthotists and Prosthetists Advisory Board workgroup and staff and were recommended by the full advisory board.
SECTION-BY-SECTION SUMMARY
The adopted rule amends §114.50, Continuing Education, by adding two new paragraphs in subsection (i) and making conforming edits to the punctuation of that subsection.
New §114.50(i)(8) adds the human trafficking prevention training required by Occupations Code, Chapter 116, to the list of acceptable sources of CE credit. No more than one hour of CE credit may be claimed by a licensee for completion of the human trafficking prevention training during a CE reporting period.
New §114.50(i)(9) adds completion of the jurisprudence examination to the list of acceptable sources of CE credit. Current Department rules in Chapter 114 do not require completion of the jurisprudence examination after initial licensure. The addition of this new paragraph permits a licensee to complete the examination for a one-hour CE credit in a CE reporting period even though the examination is not a requirement for renewal of a license.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the September 16, 2022, issue of the Texas Register (47 TexReg 5564). The public comment period closed on October 17, 2022. The Department did not receive any comments from interested parties on the proposed rules.
ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION
The Orthotists and Prosthetists Advisory Board met on October 24, 2022, to discuss the proposed rules and the public comments received. The Orthotists and Prosthetists Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on December 6, 2022, the Commission adopted the proposed rules as recommended by the Advisory Board.
STATUTORY AUTHORITY
The adopted rule is adopted under Texas Occupations Code, Chapters 51 and 605, which authorize the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rule are those set forth in Texas Occupations Code, Chapters 51 and 605. No other statutes, articles, or codes are affected by the adopted rule.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205177
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: September 16, 2022
For further information, please call: (512) 463-7750
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 117, Subchapter F, §117.55; and Subchapter G, §117.82, regarding the Massage Therapy program, without changes to the proposed text as published in the October 14, 2022, issue of the Texas Register (47 TexReg 6744). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 117, implement Texas Occupations Code, Chapter 455.
House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Sunset legislation for the Department, added new inspection provisions to Occupations Code, Chapter 51, the Department's enabling statute (see HB 1560, Article 1, Section 1.05). HB 1560 added new §51.211 to Chapter 51, requiring the department to conduct risk-based inspections that prioritize inspections based on key risk factors. HB 1560 also repealed provisions from several program statutes that conflicted with this new provision.
The adopted rules remove periodic inspections from the Massage Therapy program rules and are necessary to implement Texas Occupations Code §51.211.
SECTION-BY-SECTION SUMMARY
The adopted rules amend §117.55(a) to remove periodic inspection requirements and to add language stating that massage therapy schools will be inspected in accordance with Chapter 51, Occupations Code, and new rules governing inspections within 16 TAC, Chapter 60, Subchapter H.
The adopted rules repeal §117.55(b) and (d), as the concepts currently contained in those sections are contained in the global inspection provisions within 16 TAC, Chapter 60, Subchapter H. Accordingly, §117.55(c) has been re-designated as §117.55(b). Similarly, §117.55(e) has been re-designated as §117.55(c).
The adopted rules amend §117.82(f) to remove periodic inspection requirements and concepts that are included within the new rules governing inspections within 16 TAC, Chapter 60, Subchapter H.
The new rules regarding inspections under Chapter 60, Subchapter H, are also currently being adopted separately in this issue of the Texas Register. Those adopted rules provide, among other things, that: (1) the department may perform inspections with or without advance notice to ensure compliance with statute or rule, or as a result of a complaint; (2) inspections will be performed during the regular operating hours of the location being inspected; (3) upon completion of an inspection, the license holder, applicant, or representative will be provided with the results of the inspection in writing; (4) the department may use alternative inspection methods, including the use of videoconference technology, instead of conducting an in-person inspection; and (5) a license holder, applicant, or other person must cooperate in the performance of an inspection.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 14, 2022, issue of the Texas Register (47 TexReg 6744). The public comment period closed on November 28, 2022. The Department received comments from six interested parties on the proposed rules, as well as two comments unrelated to the proposed rules. The public comments are summarized below.
Comment: One commenter asked whether an analysis has been performed to determine the impact the proposed rules will have on human trafficking.
Department Response: The Department appreciates the question. While the Department has not engaged in a formal analysis of the impact of the proposed rules on human trafficking, the Department expects that the risk-based inspection model will be effective in identifying instances of human trafficking. The Department did not make any changes to the proposed rules in response to this comment.
Comment: Five commenters expressed concern that Department inspectors would conduct inspections while a massage was in session, or would attempt to invade the privacy of a client while a massage was taking place.
Department Response: The Department appreciates these comments. The Department disagrees with these comments, however, because Department inspectors are instructed not to enter a room while a client session is in progress. Inspectors will respect the client's privacy in all instances. The Department did not make any changes to the proposed rules in response to this comment.
COMMISSION ACTION
At its meeting on December 6, 2022, the Commission adopted the proposed rules as published in the TexasRegister.
SUBCHAPTER F. LICENSED MASSAGE SCHOOLS
STATUTORY AUTHORITY
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205193
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750
STATUTORY AUTHORITY
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2022.
TRD-202205195
Brad Bowman
General Counsel
Texas Department of Licensing and Regulation
Effective date: January 15, 2023
Proposal publication date: October 14, 2022
For further information, please call: (512) 463-7750