TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 170. PRESCRIPTION OF CONTROLLED SUBSTANCES

SUBCHAPTER D. ELECTRONIC PRESCRIBING OF CONTROLLED SUBSTANCES

22 TAC §170.10

The Texas Medical Board (Board) proposes new Subchapter D, of 22 TAC Chapter 170 entitled Electronic Prescribing of Controlled Substances, and new §170.10, Electronic Prescribing of Controlled Substances.

New §170.10 proposes to outline the process and circumstances in which a physician may obtain a waiver from controlled substance e-prescribing requirements, in accordance with Texas Health and Safety Code §481.0756, as set forth by H.B. 2174 (86th Leg. (2019)).

Scott Freshour, General Counsel for the Texas Medical Board, has determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the proposed amendments will be to clarify the process and circumstances in which a physician may obtain a waiver from controlled substance e-prescribing requirements consistent with rules proposed by the Texas Pharmacy Board in the October 2, 2020 Texas Register issue, in compliance with the statutory mandate under Section 481.0756 of the Texas Health and Safety Code.

Mr. Freshour has also determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal impact or effect on government growth as a result of enforcing the proposed amendments.

Mr. Freshour has also determined that for the first five-year period the proposed amendments are in effect there will be no probable economic cost to individuals required to comply with the proposed amendments.

Pursuant to Texas Government Code §2006.002, the agency provides the following economic impact statement for the proposed rule amendments and has determined that for each year of the first five years the proposed amendments will be in effect, there will be no effect on small businesses, micro businesses, or rural communities. The agency has considered alternative methods of achieving the purpose of the proposed rule amendments and found none.

Pursuant to Texas Government Code §2001.024(a)(4), Mr. Freshour certifies that this proposal has been reviewed and the agency has determined that for each year of the first five years the proposed amendments are in effect:

(1) there will be no additional estimated cost to the state or to local governments expected as a result of enforcing or administering the proposed amendments;

(2) there will be no estimated reductions in costs to the state or to local governments as a result of enforcing or administering the proposed amendments;

(3) there will be no estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the proposed amendments; and

(4) there will be no foreseeable implications relating to cost or revenues of the state or local governments with regard to enforcing or administering the proposed amendments.

Pursuant to Texas Government Code §2001.024(a)(6) and §2001.022, the agency has determined that for each year of the first five years the proposed amendments will be in effect, there will be no effect on local economy and local employment.

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed amendments. For each year of the first five years the proposed amendments will be in effect, Mr. Freshour has determined the following:

(1) The proposed amendments will not create or eliminate a government program.

(2) Implementation of the proposed amendments will not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed amendments will not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed amendments will not require an increase or decrease in fees paid to the agency.

(5) The proposed amendments will create a new regulation.

(6) The proposed amendments will not expand, limit or repeal an existing regulation as described above.

(7) The proposed amendments will not increase the number of individuals subject to the rule's applicability.

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

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

The new rule is proposed under the authority of Texas Health and Safety Code §481.0756, as set forth by H.B. 2174 (86th Leg. (2019)). The new rule is further authorized under Texas Occupations Code. §153.001.

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

§170.10.Electronic Prescribing of Controlled Substances.

(a) A physician shall comply with all federal and state laws relating to prescribing of controlled substances in Texas, including requirements concerning electronic prescribing under Code of Federal Regulations, Title 21, Part 1311, and Texas Health and Safety Code, §§481.074 - 481.075.

(b) A prescription for a controlled substance is not required to be issued electronically and may be issued in writing if the prescription is issued:

(1) in circumstances in which electronic prescribing is not available due to temporary technological or electronic failure; or

(2) by a physician or physician's delegate to be dispensed by a pharmacy located outside this state.

(c) A physician may apply for a waiver from the electronic prescribing requirement by:

(1) submitting a waiver request and providing required information using a form approved by the Board; and

(2) demonstrating circumstances necessitating a waiver from the requirement, including:

(A) economic hardship, as determined by the Board on a physician-by-physician basis, taking into account factors including:

(i) any special situational factors affecting either the cost of compliance or ability to comply;

(ii) the likely impact of compliance on profitability or viability; and

(iii) the availability of measures that would mitigate the economic impact of compliance;

(B) technological limitations not reasonably within the control of the physician; or

(C) other exceptional circumstances demonstrated by the physician.

(3) A waiver may be issued to a physician for a period of one year as specified under Section 481.0756(f) of the Texas Controlled Substances Act. A waiver shall expire one calendar year from the date the waiver is issued. A physician may reapply for a subsequent waiver not earlier than the 30th day before the date the waiver expires if the circumstances that necessitated the waiver continue.

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 October 30, 2020.

TRD-202004562

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: December 13, 2020

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


PART 34. TEXAS STATE BOARD OF SOCIAL WORKER EXAMINERS

CHAPTER 781. SOCIAL WORKER LICENSURE

SUBCHAPTER C. APPLICATION AND LICENSING

22 TAC §781.420

The Texas Behavioral Health Executive Council proposes new §781.420, relating to Licensing Persons with Criminal Convictions.

Overview and Explanation of the Proposed Rule. The proposed rule is needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507.

If a rule will pertain to the qualifications necessary to obtain a license then the rule must first be proposed to the Executive Council by the applicable board for the profession before the Executive Council may propose or adopt such a rule, see §507.153 of the Tex. Occ. Code. The proposed amendment pertains to licensing persons with criminal convictions as social workers; therefore, this rule is covered by §507.153 of the Tex. Occ. Code.

The Texas State Board of Social Worker Examiners, in accordance with §505.2015 of the Tex. Occ. Code, previously voted and, by a majority, approved to propose this rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Tex. Occ. Code and may propose this rule.

Fiscal Note. Darrel D. Spinks, Executive Director of the Executive Counsel, has determined that for the first five-year period the proposed rule is in effect, there will be no additional estimated cost, reduction in costs, or loss or increase in revenue to the state or local governments as a result of enforcing or administering the rule. Additionally, Mr. Spinks has determined that enforcing or administering the rule does not have foreseeable implications relating to the costs or revenues of state or local government.

Public Benefit. Mr. Spinks has determined for the first five-year period the proposed rule is in effect there will be a benefit to licensees, applicants, and the general public because the proposed rule will provide greater clarity and consistency in the Executive Council's rules by aligning with current legal standards. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Executive Council protect the public.

Probable Economic Costs. Mr. Spinks has determined for the first five-year period the proposed rule is in effect, there will be no additional economic costs to persons required to comply with this rule.

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities. Thus, the Executive Council is not required to prepare a regulatory flexibility analysis pursuant to §2006.002 of the Tex. Gov't Code.

Local Employment Impact Statement. Mr. Spinks has determined that the proposed rule will have no impact on local employment or a local economy. Thus, the Executive Council is not required to prepare a local employment impact statement pursuant to §2001.022 of the Tex. Gov't Code.

Requirement for Rules Increasing Costs to Regulated Persons. The proposed rule does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments; therefore, pursuant to §2001.0045 of the Tex. Gov't Code, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Executive Council on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Executive Council estimates that the proposed rule will have no effect on government growth. The proposed rule does not create or eliminate a government program; it does not require the creation or elimination of employee positions; it does not require the increase or decrease in future legislative appropriations to this agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation, it clarifies a rule that was repealed so it may better align with current legal standards; it does not expand an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the proposed rule. Thus, the Executive Council is not required to prepare a takings impact assessment pursuant to §2007.043 of the Tex. Gov't Code.

Request for Public Comments. Comments on the proposed rule may be submitted to Brenda Skiff, Executive Assistant, Texas Behavioral Health Executive Council, 333 Guadalupe, Ste. 3-900, Austin, Texas 78701, within 30 days of publication of this proposal in the Texas Register. Comments may also be submitted via fax to (512) 305-7701, or via email to rules@bhec.texas.gov.

The Executive Council specifically invites comments from the public on the issues of whether or not the proposed rule will have an adverse economic effect on small businesses; if the proposed rule is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the rule, describe and estimate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Executive Council may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute under which the proposed rule is to be adopted; and finally describe how the health, safety, environmental and economic welfare of the state will be impacted by the various proposed methods. See §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule is proposed under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council proposes this rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

In accordance with §505.2015 of the Tex. Occ. Code the Board previously voted and, by a majority, approved to propose this rule to the Executive Council. The rule is specifically authorized by §505.2015 of the Tex. Occ. Code which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also proposes this rule in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed this rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may propose this rule.

Lastly, the Executive Council proposes this rule under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

No other code, articles or statutes are affected by this section.

§781.420.Licensing of Persons with Criminal Convictions.

The following felonies and misdemeanors directly relate to the duties and responsibilities of a licensee:

(1) offenses listed in Article 42A.054 of the Code of Criminal Procedure;

(2) a sexually violent offense, as defined by Article 62.001 of the Code of Criminal Procedure;

(3) any felony offense wherein the judgment reflects an affirmative finding regarding the use or exhibition of a deadly weapon;

(4) any criminal violation of Chapter 505 (Social Work Practice Act) of the Occupations Code;

(5) any criminal violation of Chapter 35 (Insurance Fraud) or Chapter 35A (Medicaid Fraud) of the Penal Code;

(6) any criminal violation involving a federal health care program, including 42 USC Section 1320a-7b (Criminal penalties for acts involving Federal health care programs);

(7) any offense involving the failure to report abuse or neglect;

(8) any state or federal offense not otherwise listed herein, committed by a licensee while engaged in the practice of social work;

(9) any criminal violation of Section 22.041 (abandoning or endangering a child) of the Penal Code;

(10) any criminal violation of Section 21.15 (invasive visual recording) of the Penal Code;

(11) any criminal violation of Section 43.26 (possession of child pornography) of the Penal Code;

(12) any criminal violation of Section 22.04 (injury to a child, elderly individual, or disabled individual) of the Penal Code;

(13) three or more drug or alcohol related convictions within the last 10 years, evidencing possible addiction that will have an effect on the licensee's ability to provide competent services; and

(14) any attempt, solicitation, or conspiracy to commit an offense listed herein.

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 October 30, 2020.

TRD-202004541

Darrell D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Earliest possible date of adoption: December 13, 2020

For further information, please call: (512) 305-7706