TITLE 22. EXAMINING BOARDS

PART 11. TEXAS BOARD OF NURSING

CHAPTER 216. CONTINUING COMPETENCY

22 TAC §216.8

The Texas Board of Nursing (Board) proposes amendments to §216.8, concerning Relicensure Process. The amendments make conforming changes to the section for consistency with §216.3, which was amended by the Board and published in the Texas Register on November 15, 2019.

The changes to §216.3 were adopted under the authority of the Texas Occupations Code §§301.151, 157.0513 and 301.308, the Texas Health and Safety Code §481.0764 and §481.07635, and House Bills (HB) 2454, 2059, 3285, and 2174, enacted by the 86th Texas Legislature. Those adopted amendments affected §216.3(c) and added new §216.3(i), making the current references in §216.8 inconsistent and outdated. The proposed changes to §216.8 align the section with the provisions of newly amended §216.3.

Section by Section Overview. Section 216.8(b) - (e) eliminate the references to §216.3(d) because targeted continuing competency requirements are contained in other subsections of §216.3 and may apply when a nurse seeks reinstatement pursuant to §216.8.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments are 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 rules that are internally consistent and easy to understand. There are no anticipated costs of compliance associated with the proposal.

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. However, 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 or regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 TAC §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) the proposal does not affect existing employee positions by creating or eliminating any positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board; (iv) the proposal does not affect fees paid to the Board; (v) the proposal does not create a new regulation; (vi) the proposal amends an existing regulation applicable to licensees consistent with changes in statute resulting from the 86th Legislative Session; (vii) the proposal does not extend to new entities not previously subject to the rule; and (viii) the proposal will not affect 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 should 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 Occupations Code §301.151.

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 Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Cross Reference To Statute. This proposal affects the Texas Occupations Code §301.151.

§216.8.Relicensure Process.

(a) (No change.)

(b) Persons licensed by examination. A candidate licensed by examination shall be exempt from the CNE contact hours or approved national nursing certification requirement for issuance of the initial Texas license and for the immediate licensing period following initial Texas licensure with the exception of applicable targeted continuing competency requirements in [under] §216.3[(d)] of this chapter (relating to Continuing Competency Requirements).

(c) Persons licensed by endorsement. An applicant licensed by endorsement shall be exempt from the CNE contact hours or approved national nursing certification requirement for issuance of the initial Texas license and for the immediate licensing period following initial Texas licensure with the exception of applicable targeted continuing competency requirements in [under] §216.3[(d)] of this chapter (relating to Continuing Competency Requirements).

(d) Delinquent license.

(1) A license that has been delinquent for less than four years may be renewed by the licensee submitting proof of having completed 20 contact hours of acceptable CNE or a current approved national nursing certification in his or her prior area of practice within the two years immediately preceding application for relicensure and by meeting all other Board requirements. A licensee shall be exempt from the continuing competency requirements for the immediate licensing period following renewal of the delinquent license with the exception of applicable targeted continuing competency requirements in [under] §216.3[(d)] of this chapter (relating to Continuing Competency Requirements).

(2) (No change.)

(e) Reactivation of a license.

(1) A license that has been inactive for less than four years may be reactivated by the licensee submitting proof of having completed 20 contact hours of acceptable CNE or a current approved national nursing certification in his or her prior area of practice within the two years immediately preceding application for reactivation and by meeting all other Board requirements. A licensee shall be exempt from the continuing competency requirements for the immediate licensing period following reactivation of the license with the exception of targeted continuing competency requirements in [under] §216.3[(d)] of this chapter (relating to Continuing Competency Requirements).

(2) (No change.)

(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 November 15, 2019.

TRD-201904285

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: December 29, 2019

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


CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE

22 TAC §217.3

Introduction. The Texas Board of Nursing (Board) proposes an amendment to §217.3, concerning Temporary Authorization to Practice/Temporary Permit. The amendment is necessary to allow temporary authorizations to practice/temporary permits to be re-issued if a nurse is unable to complete the required courses/orientation within a six-month period. Due to scheduling challenges and an individual's performance pace, it sometimes takes a nurse longer than six months to complete a refresher course, extensive orientation, or academic course. The intent of §217.3 is to provide a mechanism for nurses to demonstrate their competency to return to nursing practice. Since they cannot practice nursing while completing a refresher course, extensive orientation, or academic course, they pose no risk of harm to the public during this time. The amendment merely allows the nurse a sufficient amount of time to re-establish current licensure after demonstrating he/she is safe and competent to do so. There is no cost associated with the issuance of a temporary authorization to practice/temporary permit under this section.

Section by Section Overview. Section 217.3 removes the current limitation from the rule that a temporary authorization to practice/temporary permit is unable to be re-issued/renewed. Under the proposal, a temporary authorization to practice/temporary permit may be re-issued/renewed if the nurse is unable to complete a refresher course, extensive orientation, or academic course within a six-month time period in order to grant the nurse additional time to complete the course/orientation.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments are 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 provides additional flexibility to nurses who are attempting to demonstrate competency necessary to obtain relicensure. There are no anticipated costs of compliance associated with the proposal.

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. However, 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 or regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Texas Administrative 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) the proposal does not affect existing employee positions by creating or eliminating any positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board; (iv) the proposal does not affect fees paid to the Board; (v) the proposal does not create a new regulation; (vi) the proposal amends an existing regulation; (vii) the proposal does not extend to new entities not previously subject to the rule; and (viii) the proposal will not affect 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 should 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 Occupations Code §301.151.

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 Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Cross Reference To Statute. This proposal affects the Texas Occupations Code §301.151.

§217.3.Temporary Authorization to Practice/Temporary Permit.

(a) (No change.)

(b) A nurse who has not practiced nursing for four or more years may be issued a temporary permit for the limited purpose of completing a refresher course, extensive orientation to the practice of professional or vocational nursing, whichever is applicable, or academic course. The permit is valid for six months [and is nonrenewable].

(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 November 15, 2019.

TRD-201904283

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: December 29, 2019

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


22 TAC §217.5

The Texas Board of Nursing (Board) proposes amendments to §217.5, concerning Temporary License and Endorsement. The amendments are proposed under the authority of the Texas Occupations Code §301.151 and §301.253 and implement the requirements of Senate Bill (SB) 1200, enacted by the 86th Texas Legislature, effective September 1, 2019.

SB 1200

SB 1200 requires agencies like the Board to establish a process to allow qualifying military spouses to practice nursing in Texas without obtaining a license. In order to qualify for this licensure exemption, the military spouse must be currently licensed in good standing by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements in this state. Further, the military spouse must notify the agency of his/her intent to practice in this state; submit proof of the individual's residency in this state and a copy of the individual's military identification card; and receive confirmation from the agency that the agency has verified the individual's license in the other jurisdiction and that the individual is authorized to practice nursing in this state. The individual may not practice nursing in this state for a period to extend beyond three years from the date the agency approves the individual's practice. The bill also permits an agency to issue a license to a qualifying military spouse if the agency chooses to do so. However, the agency is prohibited from charging the military spouse a fee for the issuance of the license.

Because employers, consumers, and other members of the public routinely utilize the Board's on-line licensure verification system to determine the licensure status of nurses in Texas, the Board has determined that issuing licenses to qualifying military spouses is most consistent with its current licensure and verification processes. These licenses will be limited to three year terms and will be searchable through the Board's on-line verification system in the same manner as other license types. Further, individuals receiving a license under the proposal will not be required to complete continuing education requirements for the duration of the license, which is limited to a three-year time period.

Canadian NCLEX-RN

The remainder of the proposed changes are necessary to allow the successful completion of the Canadian NCLEX-RN and licensure from a Canadian province by NCLEX-RN to satisfy a portion of the Board's endorsement requirements. On January 5, 2015, the NCLEX-RN replaced the CRNE as Canada's national examination for those applying to be a registered nurse. The Board currently requires the successful completion of the U.S. NCLEX-RN for licensure as a registered nurse in Texas if the applicant is applying by endorsement. The Board also currently requires licensure by another U.S jurisdiction for licensure as a registered nurse in Texas if the applicant is applying by endorsement. The proposed amendments extend this licensure opportunity to applicants successfully passing the Canadian NCLEX-RN and holding licensure from a Canadian province by NCLEX-RN. This opportunity will only apply to applicants seeking registered nurse licensure because the Canadian NCLEX-PN has not been approved for use at this time.

Section by Section Overview. Under the Board's current rules, a nurse may seek licensure in Texas through endorsement if certain criteria are met. Proposed §217.5(a)(2) allows a nurse to qualify for licensure in Texas through endorsement if he/she has successfully completed the Canadian NCLEX-RN in January 2015 or after. Proposed §217.5(a)(3) allows a nurse to qualify for licensure in Texas through endorsement if the nurse is licensed by a Canadian province by NCLEX-RN. The proposed amendments to §217.5(b) make similar conforming changes to the section.

Proposed §217.5(g)(1) sets forth the criteria that a military spouse must meet in order to be eligible for licensure under SB 1200. First, a military spouse must hold an active, current license to practice nursing in another state or territory that has licensing requirements, including education requirements, that are determined by the Board to be substantially equivalent to the requirements for nursing licensure in Texas. Second, the military spouse's license may not be subject to any current restriction, eligibility order, disciplinary order, probation, suspension, or other encumbrance. Third, the military spouse must submit proof of the military spouse's residency in Texas and a copy of the spouse's military identification card. Fourth, the military spouse must notify the Board of the military spouse's intent to practice nursing in Texas on a form prescribed by the Board. Finally, the military spouse must meet the Board's fitness to practice and eligibility criteria set forth in §213.27 (relating to Good Professional Character), §213.28 (relating to Licensure of Individuals with Criminal History), and §213.29 (relating to Fitness to Practice). Proposed §217.5(g)(2) provides that, if the military spouse meets this specified criteria, the Board will issue a license to the military spouse to practice nursing in Texas. Further, the license will expire no later than the third anniversary of the date of the issuance of the license and may not be renewed. The military spouse will not be charged a fee for the issuance of the license. Proposed §217.5(g)(3) provides that a military spouse who is unable to meet the specified criteria in (g)(1) may still seek licensure in Texas, pursuant to the requirements in §217.2 (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions), §217.4 (relating to Requirements for Initial Licensure by Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdiction), §213.30 (relating to Declaratory Order of Eligibility for Licensure), §221.3 (relating to APRN Education Requirements for Licensure), §221.4 (relating to Licensure as an APRN), or the other remaining subsections of §217.5, as applicable. Finally, proposed §217.5(g)(4) requires a military spouse issued a license to practice nursing in Texas to comply with all laws and regulations applicable to the practice of nursing in Texas.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments are 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 SB 1200 and extends licensure opportunities to qualifying Canadian nurses wishing to endorse into Texas.

There are no anticipated costs of compliance associated with the proposal. There are no licensure fees associated with issuing a license to a qualifying military spouse under the proposal. Further, there are no costs associated with the remaining amendments that expand the licensure opportunities for endorsement to nurses passing the Canadian NCLEX-RN and holding licensure in a Canadian province by NCLEX-RN. In contrast, the proposal may result in cost savings to some individuals who will be able to obtain a Texas nursing license in a more efficient and faster manner than under the Board's current licensure requirements. Because the proposal is not anticipated to result in new costs of compliance, the Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045(b).

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. 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 TAC §11.1, to prepare a government growth impact statement. As a result, 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) the proposal does not affect existing employee positions by creating or eliminating any positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board; (iv) the proposal does not affect fees paid to the Board; (v) the proposal creates a new process for military spouse licensure, in compliance with SB 1200; (vi) the proposal amends an existing regulation applicable to qualifying Canadian nurses wishing to endorse into Texas; (vii) the proposal extends to new entities not previously subject to the rule; namely military spouses qualifying for licensure under SB 1200 and Canadian nurses wishing to endorse into Texas; and (viii) the proposal will not affect 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 should be submitted 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 Occupations Code §§301.151, 301.253, and 55.0041.

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 Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Section 301.253(a) states that, except as provided by §301.452, an applicant is entitled to take the examination prescribed by the Board if: (1) the Board determines that the applicant meets the qualifications required by §301.252; and (2) the applicant pays the fees required by the Board.

Section 301.253(b) states that each examination administered under Section 301.253 must be prepared by a national testing service or the Board. The Board shall ensure that the examination is administered in various cities throughout the state.

Section 301.253(c) provides that the examination shall be designed to determine the fitness of the applicant to practice professional nursing or vocational nursing.

Section 301.253(c-1) states that the Board shall: (1) adopt policies and guidelines detailing the procedures for the testing process, including test admission, test administration, and national examination requirements; and (2) post on the Board's Internet website the policies that reference the testing procedures by the national organization selected by the board to administer an examination.

Section 301.253(d) states that the Board shall determine the criteria that determine a passing score on the examination. The criteria may not exceed those required by the majority of the states.

Section 301.253(e) provides that a written examination prepared, approved, or offered by the Board, including a standardized national examination, must be validated by an independent testing professional.

Section 301.253(f) states that the Board shall develop a written refund policy regarding examination fees that: (1) defines the reasonable notification period and the emergencies that would qualify for a refund; and (2) does not conflict with any examination fee or refund policy of the testing service involved in administering the examination.

Section 301.253(g) states that the Board may recommend to a national testing service selected by the Board to offer examinations under this section the Board's written policy for refunding an examination fee for an applicant who: (1) provides advance notice of the applicant's inability to take the examination; or (2) is unable to take the examination because of an emergency.

Section 55.041(a) provides that, notwithstanding any other law, a military spouse may engage in a business or occupation for which a license is required without obtaining the applicable license if the spouse is currently licensed in good standing by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license in this state.

Section 55.041(b) states that before engaging in the practice of the business or occupation, the military spouse must: (1) notify the applicable state agency of the spouse's intent to practice in this state; (2) submit to the agency proof of the spouse's residency in this state and a copy of the spouse's military identification card; and (3) receive from the agency confirmation that: (A) the agency has verified the spouse's license in the other jurisdiction; and (B) the spouse is authorized to engage in the business or occupation in accordance with this section.

Section 55.041(c) provides that the military spouse shall comply with all other laws and regulations applicable to the business or occupation in this state.

Section 55.041(d) states that a military spouse may engage in the business or occupation under the authority of this section only for the period during which the military service member to whom the military spouse is married is stationed at a military installation in this state but not to exceed three years from the date the spouse receives the confirmation described by §55.041(b)(3).

Section 55.041(e) provides that a state agency that issues a license shall adopt rules to implement this section. The rules must establish a process for the agency to: (1) identify, with respect to each type of license issued by the agency, the jurisdictions that have licensing requirements that are substantially equivalent to the requirements for the license in this state; and (2) verify that a military spouse is licensed in good standing in a jurisdiction described by Subdivision (1).

Section 55.041(f) provides that, in addition to the rules adopted under §55.041(e), a state agency that issues a license may adopt rules to provide for the issuance of a license to a military spouse to whom the agency provides confirmation under §55.041 (b)(3). A license issued under this subsection must expire not later than the third anniversary of the date the agency provided the confirmation and may not be renewed. A state agency may not charge a fee for the issuance of the license.

§217.5.Temporary License and Endorsement.

(a) A nurse who has practiced nursing in another state within the four years immediately preceding a request for temporary licensure and/or permanent licensure by endorsement may obtain a non-renewable temporary license, which is valid for 120 days, and/or a permanent license for endorsement by meeting the following requirements:

(1) (No change.)

(2) Satisfactory completion of the licensure examination according to Board established minimum passing scores:

(A) (No change).

(B) Registered Nurse Licensure Examination:

(i) (No change.)

(ii) Prior to February 1989--a minimum score of 1600 on the NCLEX-RN; [and]

(iii) February 1989 and after, must have achieved a passing report on the NCLEX-RN; and

(iv) January 2015 and after, for applicants taking the Canadian NCLEX-RN, must have achieved a passing report on the Canadian NCLEX-RN;

(3) Licensure by another U.S. jurisdiction or licensure from a Canadian province by NCLEX-RN;

(4) - (8) (No change.)

(b) A nurse who has not practiced nursing in another state or taken the NCLEX-RN within the four years immediately preceding a request for temporary licensure and/or permanent licensure by endorsement will be required to:

(1) - (4) (No change.)

(c) - (f) (No change.)

(g) Out-of-State Licensure of Military Spouse.

(1) Pursuant to Texas Occupations Code §55.0041, a military spouse is eligible to practice nursing in Texas if the military spouse:

(A) holds an active, current license to practice nursing in another state or territory:

(i) that has licensing requirements, including education requirements, that are determined by the Board to be substantially equivalent to the requirements for nursing licensure in Texas; and

(ii) is not subject to any current restriction, eligibility order, disciplinary order, probation, suspension, or other encumbrance;

(B) submits proof of the military spouse's residency in Texas and a copy of the spouse's military identification card;

(C) notifies the Board of the military spouse's intent to practice nursing in Texas on a form prescribed by the Board; and

(D) meets the Board's fitness to practice and eligibility criteria set forth in §213.27 (relating to Good Professional Character), §213.28 (relating to Licensure of Individuals with Criminal History), and §213.29 (relating to Fitness to Practice) of this title.

(2) If a military spouse meets the criteria set forth in this subsection, the Board will issue a license to the military spouse to practice nursing in Texas. A license issued under this subsection expires no later than the third anniversary of the date of the issuance of the license and may not be renewed. The military spouse will not be charged a fee for the issuance of the license.

(3) A military spouse who is unable to meet the criteria set forth in this subsection remains eligible to seek licensure in Texas, as set forth in §217.2 (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions), §217.4 (relating to Requirements for Initial Licensure by Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdiction), §221.3 (relating to APRN Education Requirements for Licensure), §221.4 (relating to Licensure as an APRN ), §213.30 (relating to Declaratory Order of Eligibility for Licensure), or the other remaining subsections of this section.

(4) While practicing nursing in Texas, the military spouse must comply with all laws and regulations applicable to the practice of nursing in Texas.

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 November 15, 2019.

TRD-201904284

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: December 29, 2019

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


PART 16. TEXAS BOARD OF PHYSICAL THERAPY EXAMINERS

CHAPTER 322. PRACTICE

22 TAC §322.5

The Texas Board of Physical Therapy Examiners proposes amending §322.5. Telehealth in response to a petition for adoption of rule changes.

The amendment is proposed in order to clarify the role of the physical therapist assistant in the provision of physical therapy via telehealth.

Fiscal Note

Ralph A. Harper, Executive Director of the Executive Council of Physical Therapy & Occupational Therapy Examiners, has determined that for the first five-year period these amendments are in effect there would be no increase or loss of revenue to the state. No fiscal implication to units of local government is anticipated as a result of enforcing or administering the rules.

Public Benefits and Costs

Mr. Harper has also determined that for the first five-year period these amendments are in effect the public benefit will be increasing consumer access to physical therapy services by allowing physical therapist assistants to provide physical therapy treatment via telehealth under the delegation and supervision of a physical therapist. There will be no economic cost to physical therapist assistants who will provide treatment via telehealth as no new fee will be imposed.

Local Employment Economic Impact Statement

The amendments are not anticipated to impact a local economy, so a local employment economic impact statement is not required.

Small and Micro-Businesses and Rural Communities Impact

Mr. Harper has determined that there will be no costs or adverse economic effects to small or micro-businesses or rural communities; therefore, an economic impact statement or regulatory flexibility analysis is not required.

Government Growth Impact Statement

During the first five-year period these amendments are in effect, the impact on government growth is as follows: the proposed amendment will neither create nor eliminate a government program; will neither create new employee positions nor eliminate existing employee positions; will neither increase nor decrease future legislative appropriations to the agency; will neither require an increase nor a decrease in fees paid to the agency; amends an existing regulation by authorizing a physical therapist assistant to treat a patient via telehealth; will increase the number of licensees subject to the rule's applicability with the addition of physical therapist assistants authorized to provide physical therapy services via telehealth.

Takings Impact Assessment

The proposed rule amendments will not impact private real property as defined by Tex. Gov't Code §2007.003, so a takings impact assessment under Tex. Gov't Code §2001.043 is not required.

Requirement for Rule Increasing Costs to Regulated Persons

Tex. Gov't Code §2001.0045, Requirement for Rule Increasing Costs to Regulated Persons, does not apply to this proposed rule because the amendments will not increase costs to regulated persons and are necessary in response to a petition for adoption of rules changes.

Public Comment

Comments on the proposed amendments may be submitted to Karen Gordon, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: karen@ptot.texas.gov. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.

Statutory Authority

The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Cross-reference to Statute

The proposed amendment implements provisions in Sec. 453.005, Occupations Code in response to a petition for adoption of rule changes.

§322.5.Telehealth.

(a) When used in the rules of the Texas Board of Physical Therapy Examiners, telehealth is the use of telecommunications or information technology to provide physical therapy services to a patient who is physically located at a site in Texas other than the site where the physical therapist or physical therapist assistant is located, whether or not in Texas.

(b) Physical therapy telehealth services must be provided by a physical therapist or physical therapist assistant under the supervision of the physical therapist who possesses a current:

(1) unrestricted Texas license; or

(2) Compact Privilege to practice in Texas.

(c) The provision of physical therapy services via telehealth requires synchronous audiovisual or audio interaction between the physical therapist or physical therapist assistant and the patient/client, which may be accompanied by the use of asynchronous store and forward technology.

(d) Standard of Care. A physical therapist or physical therapist assistant that provides telehealth services:

(1) is subject to the same standard of care that would apply to the provision of the same physical therapy service in an in-person setting; and

(2) the physical therapist is responsible for determining whether an evaluation or intervention may be conducted via telehealth or must be conducted in an in-person setting.

(e) Informed Consent. A physical therapist that provides telehealth services must obtain and maintain the informed consent of the patient, or of another individual authorized to make health care treatment decisions for the patient, prior to the provision of telehealth services.

(f) Confidentiality. A physical therapist or physical therapist assistant that provides telehealth services must ensure that the privacy and confidentiality of the patient's medical information is maintained during and following the provision of telehealth services, including compliance with HIPAA regulations and other federal and state law.

(g) The failure of a physical therapist or physical therapist assistant to comply with this section shall constitute detrimental practice and could subject the licensee to disciplinary action by the Board.

(h) Provision of telehealth services by a physical therapist assistant, must occur under the supervision of the physical therapist is accordance with rule §322.3 of this title (relating to Supervision).

[(h) A physical therapist assistant may not provide telehealth services but may be present at the same location as the patient to assist the physical therapist in providing telehealth services.]

(i) Telehealth is a mode for providing one-on-one physical therapy services to a patient/client and is not a means for supervision of [physical therapist assistants or] physical therapy aides.

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 November 12, 2019.

TRD-201904217

Ralph A. Harper

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: December 29, 2019

For further information, please call: (512) 305-6900


PART 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

CHAPTER 501. RULES OF PROFESSIONAL CONDUCT

SUBCHAPTER E. RESPONSIBILITIES TO THE BOARD/PROFESSION

22 TAC §501.91

The Texas State Board of Public Accountancy (Board) proposes an amendment to §501.91, concerning Reportable Events.

Background, Justification and Summary

The amendment to §501.91 revises subsection (d) to make it clear that firms and licensees are not required to report an un-appealable adverse finding in any state or federal court or agreed settlement in a civil action or an agreed consent order or settlement with a regulatory authority or a negotiated settlement evidencing deficient accounting services when no Texas licensee is involved or no harm has been caused to an entity located in Texas.

Fiscal Note

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

Public Benefit

The adoption of the proposed amendment will clarify when settlements or adverse findings in a civil court against a licensee must be reported to the Board.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

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

Government Growth Impact Statement

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

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8) Texas Government Code).

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on December 30, 2019.

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

Statutory Authority

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

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

§501.91.Reportable Events.

(a) A licensee or certificate holder shall report in writing to the board the occurrence of any of the following events within 30 days of the date the licensee or certificate holder has knowledge of these events:

(1) the filing of criminal charges or the conviction or imposition of deferred adjudication of the licensee or certificate holder of:

(A) a felony;

(B) a crime of moral turpitude as listed in §519.7(a)(2) of this title (relating to Criminal Offenses that May Subject a Licensee or Certificate Holder to Discipline or Disqualify a Person from Receiving a License);

(C) a crime of which fraud or dishonesty is an element as listed in §519.7(a)(1) of this title;

(D) a crime that involves alcohol abuse or controlled substances as listed in §519.7(a)(3) of this title;

(E) a crime of physical injury or threats of physical injury to a person as listed in §519.7(a)(4) of this title; or

(F) a crime related to the qualifications, functions, or duties of a public accountant or CPA, or to acts or activities in the course and scope of the practice of public accountancy or as a fiduciary;

(2) the cancellation, revocation, or suspension or a voluntary consent decree of the right to practice as a CPA or a public accountant by any governmental body or agency or state, foreign country, or other jurisdiction for a reason other than the failure to pay the appropriate authorization fee;

(3) an un-appealable adverse finding in any state or federal court, an agreed settlement in a civil action against the licensee or certificate holder, or an agreed consent order or settlement with a regulatory authority or licensing body concerning professional accounting services or professional accounting work;

(4) a negotiated settlement evidencing deficient accounting services; or

(5) the revocation, suspension, or voluntary consent decree or any limitation on a professional license from any state or federal regulatory agency such as an insurance license or a securities license, resulting from an un-appealable adverse finding.

(b) The report required by subsections (a) and (c) of this section shall be signed by the licensee or certificate holder and shall set forth the facts which constitute the reportable event. If the reportable event involves the action of an administrative agency or court, then the report shall set forth the title of the matter, court or agency name, docket number, and dates of occurrence of the reportable event.

(c) Regardless of whether a civil suit or administrative adjudicatory action has been filed, a licensee shall notify the board within 30 days of any written settlement agreement in which a licensee has been released from any or all claims or liabilities grounded, in whole or in part, upon an allegation of:

(1) professional negligence, gross negligence, dishonesty, fraud, misrepresentation, incompetence; or

(2) a violation of any consent order or settlement with a regulatory or licensing body concerning professional accounting services or professional accounting work.

(d) A licensee is not required to report to the board any of the events set forth in subsections (a)(3), (a)(4) and [subsection] (c) of this section when no Texas licensee is involved in the event or no harm has been caused to a person or entity located in Texas. The firm may contact the board to determine what may constitute involvement or harm to a person or entity located in Texas.

(e) Nothing in this section imposes a duty upon any licensee or certificate holder to report to the board the occurrence of any of the events set forth in subsections (a) and (c) of this section either by or against any other licensee or certificate holder.

(f) As used in this section, a conviction includes the initial plea, verdict, or finding of guilt, plea of no contest, or pronouncement of sentence by a trial court, even though that conviction may not be final or sentence may not be actually imposed until all appeals are exhausted.

(g) Confidentiality provisions in the terms of any settlement of the reportable events described in subsections (a) and (c) of this section shall not limit the licensee's or certificate holder's obligation to report such event and to cooperate fully with the board in any investigation. All information gathered or received by the board regarding a disciplinary action is confidential and not subject to disclosure under Chapter 552 of the Government Code (relating to Public Information) prior to public hearing.

(h) Interpretive Comment: A crime of moral turpitude is defined in this chapter as a crime involving grave infringement of the moral sentiment of the community and further defined in §501.90(19) of this chapter (relating to Discreditable Acts) and §519.7 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 November 14, 2019.

TRD-201904250

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: December 29, 2019

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


CHAPTER 513. REGISTRATION

SUBCHAPTER B. REGISTRATION OF CPA FIRMS

22 TAC §513.16

The Texas State Board of Public Accountancy (Board) proposes an amendment to §513.16, concerning Death or Incapacitation of Firm Owner.

Background, Justification and Summary

The amendment to §513.16 removes the requirement that medical affidavits be notarized.

Fiscal Note

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

Public Benefit

The proposed amendment will eliminate the burden of an unnecessary notarization of the affidavit.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

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

Government Growth Impact Statement

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

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8) Texas Government Code).

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on December 30, 2019.

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

Statutory Authority

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

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

§513.16.Death or Incapacitation of Firm Owner.

(a) Upon written authorization from the executive director, a firm with only one CPA owner may continue to operate for a period of up to 15 months following the death or incapacitation of the sole CPA owner. The executive director, subject to ratification at the next board meeting, may permit the continued operation of the firm when he has been provided with:

(1) In the event of the death of the sole CPA owner:

(A) a certified copy of the sole CPA owner's death certificate;

(B) a copy of the power of attorney from the sole CPA owner's executor, administrator, or heir along with a document from the executor, administrator or heir designating a Texas CPA in good standing with the board with the authority and intention to manage the sole CPA owner's firm; and

(C) written evidence that a disruption in the continuation of the sole CPA owner's firm would jeopardize the survivability of the firm.

(2) In the event of the incapacitation of the sole CPA owner:

(A) an [a notarized] affidavit from the sole CPA owner's physician stating that the sole CPA owner, because of a severe ongoing physical, mental impairment or medical condition is not able to perform the day-to-day tasks necessary for the continued operation of the firm;

(B) a copy of a power of attorney or a court ordered guardianship along with a document from the holder of the power of attorney or the guardian designating a Texas CPA in good standing with the board with the authority and intention to manage the sole CPA owner's firm; and

(C) written evidence that a disruption of the continuation of the sole CPA owner's firm would jeopardize the survivability of the firm.

(b) Upon the death of a co-owner of a firm with a surviving CPA owner, the firm may continue to operate during the period the owner's estate is being probated. The firm's resident manager shall notify the board in the firm's next annual licensing application of the status of the firm's ownership.

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 November 14, 2019.

TRD-201904251

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: December 29, 2019

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


CHAPTER 515. LICENSES

22 TAC §515.8

The Texas State Board of Public Accountancy (Board) proposes an amendment to §515.8, concerning Retired or Disability Status.

Background, Justification and Summary

The amendment to §515.8 removes the requirement that medical affidavits be notarized.

Fiscal Note

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

Public Benefit

The adoption of the proposed amendment will eliminate the burden of an unnecessary notarization of the affidavit.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

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

Government Growth Impact Statement

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

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8) Texas Government Code).

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on December 30, 2019.

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

Statutory Authority

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

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

§515.8.Retired or Disability Status.

(a) Retired status. A licensee who is at least 60 years old and has filed a request on a form prescribed by the board stating that he has no association with accounting may be granted retired status at the time of license renewal. A licensee in retired status is exempt from the fingerprinting required in §515.1(d) of this chapter (relating to License). A licensee who has been granted retired status and who reenters the workforce in a position that has an association with accounting automatically loses the retired status except as provided for in subsection (a)(1) of this section, and must provide the fingerprinting required in §515.1(d) of this chapter unless previously submitted to the board.

(1) A licensee who serves without compensation on a Board of Directors, or Board of Trustees, or provides volunteer tax preparation services, participates in a government sponsored business mentoring program such as the Internal Revenue Service's Volunteer Income Tax Assistance (VITA) program or the Small Business Administration's SCORE program or participates in an advisory role for a similar charitable, civic or other non-profit organization continues to be eligible for retired status.

(2) Licensees providing such uncompensated volunteer services have the responsibility to maintain professional competence relative to the volunteer services they provide even though exempted from CPE requirements.

(3) The board shall require licensees to affirm in writing their understanding of the limited types of activities in which they may engage while in retired status and their understanding that they have a professional duty to ensure that they hold the professional competencies necessary to offer these limited volunteer services.

(4) Licensees may only convert to retired status if they hold a license in good standing and not be subject to any sanction or disciplinary action.

(5) Compensated services do not include routine reimbursement for travel costs and meals associated with the volunteer services or de minimis per diem amounts paid to cover such expenses.

(6) A retired licensee shall place the word "retired" adjacent to his CPA or Public Accountant title on any business card, letterhead or any other document. A licensee may be held responsible for a third party incorrectly repeating the CPA's title and shall make reasonable efforts to assure that the word "retired" is used in conjunction with CPA. Any of these terms must not be applied in such a manner that could likely confuse the public as to the current status of the licensee. The licensee will not be required to have a certificate issued with the word "retired" on the certificate.

(7) A licensee in "retired" status is not required:

(A) to maintain CPE; and

(B) provide fingerprinting in accordance with §515.1(d) of this chapter unless the retired status is removed.

(8) A retired licensee shall not offer or render professional services that requires his signature and use of the CPA title either with or without "retired" attached, except a retired licensee providing supervision of an applicant to take the UCPAE may sign the work experience form.

(9) Upon reentry into the workforce, the licensee must notify the board and request a new license renewal notice and:

(A) pay the license fee established by the board for the period since he became employed;

(B) complete a new license renewal notice; and

(C) meet the CPE requirements for the period since he was granted the retired status as required by §523.113(3) of this title (relating to Exemptions from CPE).

(b) Disability status. Disability status may be granted to an individual who submits to the board a statement and an [a notarized] affidavit from the licensee's physician which identifies the disability and states that the individual is unable to work because of a severe ongoing physical or mental impairment or medical condition that is not likely to improve within the next 12 consecutive months. This status may be granted only at the time of license renewal.

(1) Disability status is immediately revoked upon:

(A) the CPA reentering the workforce in a position that has an association with accounting work for which he receives compensation; or

(B) the CPA serving on a Board of Directors, Board of Trustees, or in a similar governance position unless the service is for a charity, civic, or similar non-profit organization.

(2) Upon reentry into the workforce under such conditions, the individual must notify the board and request a new license renewal notice and:

(A) pay the license fee established by the board for the period since he became employed;

(B) complete a new license renewal notice;

(C) meet the CPE requirements for the period pursuant to §523.113(3) of this title; and

(D) provide the fingerprinting required in §515.1(d) of this chapter unless previously submitted.

(c) For purposes of this section the term "association with accounting" shall include the following:

(1) working or providing oversight of accounting or supervising work performed in the areas of financial accounting and reporting; tax compliance, planning or advice; management advisory services; accounting information systems; treasury, finance, or audit; or

(2) representing to the public, including an employer, that the individual is a CPA or public accountant in connection with the sale of any services or products involving accounting services or work, as provided for in §501.52(22) of this title (relating to Definitions) including such designation on a business card, letterhead, proxy statement, promotional brochure, advertisement, or office; or

(3) offering testimony in a court of law purporting to have expertise in accounting and reporting, auditing, tax, or management services; or

(4) providing instruction in accounting courses; or

(5) for purposes of making a determination as to whether the individual fits one of the categories listed in this section the questions shall be resolved in favor of including the work as an "association with accounting."

(d) Nothing herein shall be construed to limit the board's disciplinary authority with regard to a license in retired or disabled status. All board rules and all provisions of the Act apply to an individual in retired or disability status.

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 November 14, 2019.

TRD-201904252

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: December 29, 2019

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


CHAPTER 519. PRACTICE AND PROCEDURE

SUBCHAPTER A. GENERAL PROVISIONS

22 TAC §519.2

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.2, concerning Definitions.

Background, Justification and Summary

The amendment to §519.2 revises the definition of deferred adjudication to eliminate the requirement for a pleading of guilt in order to be considered deferred adjudication.

Fiscal Note

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

Public Benefit

The adoption of the proposed amendment will more clearly identify what constitutes deferred adjudication in light of the various methods used by the courts to defer a judgment contingent upon the defendant taking certain actions prior to trial or sentencing.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

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

Government Growth Impact Statement

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

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8) Texas Government Code).

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on December 30, 2019.

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

Statutory Authority

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

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

§519.2.Definitions.

In this chapter:

(1) "Address of record" means the last address provided to the board by a certificate or registration holder pursuant to §501.93 of this title (relating to Responses);

(2) "ALJ" means SOAH administrative law judge;

(3) "APA" means the Texas Administrative Procedure Act, Chapter 2001 of the Texas Government Code;

(4) "Board staff" means the agency's employees;

(5) "Committee" means an enforcement committee of the board;

(6) "Complainant" means the person or entity who initiates a complaint with the board against a certificate or registration holder;

(7) "Complaint" means information available to or provided to the board indicating that a certificate or registration holder may have violated the Act, board rules, or order of the board;

(8) "Contested case" means a proceeding, including a ratemaking or licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing;

(9) "Deferred Adjudication" means [a person entered a plea of guilty or nolo contendere,] the judge deferred further proceedings without entering an adjudication of guilt and placed the person under the supervision of the court or an officer under the supervision of the court and at the end of the period of supervision, the judge dismissed the proceedings and discharged the person;[.]

(10) "Direct Administrative Costs" means those costs actually incurred by the board through payment to outside vendors and the resources expended by the board in the investigation and prosecution of a matter within the board's jurisdiction, including but not limited to, staff salary, payroll taxes and benefits and other non-salary related expenses, expert fees and expenses, witness fees and expenses, filing fees and expenses of the support staff of the Office of the Attorney General, filing fees, SOAH utilization fees, court reporting fees, copying fees, delivery fees, case management fees, costs of exhibit creation, technical fees, travel costs and any other cost or fee that can reasonably be attributed to the matter;

(11) "Petitioner" means the Texas State Board of Public Accountancy;

(12) "PFD" means the proposal for decision prepared by an ALJ;

(13) "Respondent" means a licensee or certificate holder, individual or entity against whom a complaint has been filed; and

(14) "SOAH" means the State Office of Administrative Hearings.

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 November 14, 2019.

TRD-201904253

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: December 29, 2019

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


CHAPTER 525. CRIMINAL BACKGROUND INVESTIGATIONS

22 TAC §525.1

The Texas State Board of Public Accountancy (Board) proposes an amendment to §525.1, concerning Applications for the UCPAE, Issuance of the CPA Certificate, or Initial License.

Background, Justification and Summary

The amendment to §525.1 incorporates into the board's rules the standards found in Chapter 53 of the Occupations Code which were revised during the 86th Session of the Texas Legislature.

Fiscal Note

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

Public Benefit

The proposed amendments will assist an applicant to better understand the criminal events that could affect their ability to take the Uniform CPA Exam.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

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

Government Growth Impact Statement

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

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8) Texas Government Code).

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on December 30, 2019.

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

Statutory Authority

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

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

§525.1.Applications for the UCPAE, Issuance of the CPA Certificate, or Initial License.

[(a) The board may prohibit an individual from taking the UCPAE, and may not issue the CPA certificate, or an initial license, for a period not to exceed five years from the date of the application, for an offense that does not directly relate to the duties and responsibilities of the practice of public accountancy when the conviction of the offense occurred less than five years before the person applied for the license.]

(a) [(b)] The [Regardless of the date of the offense, the] board may prohibit an individual from taking the UCPAE, and may not issue the CPA certificate, or an initial license, for up to five years from the date of the application, if the board finds that the applicant has been convicted of an offense listed in Article 42A.054 of the Texas Code of Criminal Procedure, a sexually violent offense as defined by Article 62.001 of the Texas Code of Criminal Procedure, or a criminal [a felony, or misdemeanor] offense which directly relates to the duties and responsibilities of the practice of public accountancy. The board may consider an individual to have been convicted of a criminal offense regardless of having received deferred adjudication and having the charges dismissed if the individual has not completed the period of supervision or the individual completed the supervision less than five years before the individual applied for the license. In determining whether the felony or misdemeanor conviction directly relates to the duties and responsibilities of the practice of public accountancy, the board shall consider:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to engage in the [board's statutory responsibility to ensure that persons professing to] practice of public accountancy [maintain high standards of competence and integrity in light of the reliance of the public on professional accounting services];

(3) the extent to which a license to practice public accountancy might offer an opportunity to engage in further criminal activity of the same type as that in which the applicant [person] was previously involved;

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of a CPA or public accountant; and

(5) any correlation between the elements of the crime and the duties and responsibilities of the practice of public accountancy. [fraud or dishonesty as an element of the offense; and]

[(6) all conduct indicating a lack of fitness to serve the public as a professional accountant.]

(b) [(c)] In addition to the factors stated in subsection (a) [(b)] of this section, the board shall consider: [§53.023 (Texas Occupations Code) in determining the present fitness of an applicant who has been convicted of a crime.]

(1) the extent and nature of the applicant's past criminal activity;

(2) the age of the applicant when the crime was committed;

(3) the amount of time that has elapsed since the applicant's last criminal activity;

(4) the conduct and work activity of the applicant before and after the criminal activity;

(5) evidence of the applicant's rehabilitation or rehabilitative effort while incarcerated or after release;

(6) evidence of the applicant's compliance with any conditions of community supervision, parole, or mandatory supervision; and

(7) other evidence of the applicant's fitness, including letters of recommendation from:

(A) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the applicant;

(B) the sheriff or chief of police in the community where the applicant resides; and

(C) any other person in contact with the convicted applicant.

(c) It is the applicant's responsibility to obtain and provide to the board evidence regarding the factors listed in subsection (b) of this section.

(d) In addition to fulfilling the requirements of subsection (c) of this section, the applicant shall furnish proof in the form required by the board that the applicant has:

(1) maintained a record of steady employment;

(2) supported the applicant's dependents;

(3) maintained a record of good conduct; and

(4) paid all outstanding court costs, supervision fees, fines and restitution ordered in any criminal case in which the applicant has been convicted.

(e) As provided in §901.005(c) and (e)(3) of the Act (relating to Findings; Public Policy; Purpose), the public including the business community relies on the integrity of licensees and certificate holders in providing professional accounting services or professional accounting work. The board considers a conviction or placement on deferred adjudication for a felony or conviction or placement on deferred adjudication for the misdemeanor offenses listed in §519.7 of this title (relating to Criminal Offenses that May Subject a Licensee or Certificate Holder to Discipline or Disqualify a Person from Receiving a License) to be evidence of an individual lacking the integrity necessary to be trusted with confidential client information, client funds and assets which directly relates to the duties and responsibilities of a licensee in the practice of public accountancy. An applicant who is convicted of a felony or repeatedly violates the law may lack the integrity to enjoy the public's trust and the privilege of being a CPA.

(f) The board will not deny an applicant a license or the opportunity to be examined for a license because of the applicant's prior conviction of an offense until the board has:

(1) provided written notice to the applicant of the reason for the intended denial; and

(2) allowed the applicant 30 days to submit any relevant information to the board for its consideration.

(g) The notice required under subsection (f) of this section will contain as applicable:

(1) a statement that the applicant is disqualified from receiving the license or being examined for the license because of the applicant's prior conviction of the offense specified in the notice; and

(2) a statement that:

(A) the final decision of the board to deny the applicant a license or the opportunity to be examined for the license will be based on the factors listed in subsection (b) of this section; and

(B) it is the applicant's responsibility to obtain and provide to the board evidence regarding the factors listed in subsection (b) of this section.

[(d) Because an accountant is often placed in a position of trust with respect to client funds, and the public in general relies on professional accounting services, the Texas State Board of Public Accountancy considers that the following crimes directly relate to the practice of public accountancy:]

[(1) any felony or misdemeanor of which fraud or deceit is an essential element;]

[(2) any felony or misdemeanor conviction which results in the suspension or revocation of the right to practice before any state or federal agency for a cause which in the opinion of the board warrants its action; and]

[(3) any crime involving moral turpitude.]

(h) [(e)] The following procedures shall apply in the processing of an application to take the UCPAE.

(1) The applicant will be asked to affirm [respond], under penalty of perjury, to the question of whether or not the applicant [if he or she] has ever been convicted , as provided in subsection (a) of this section, of a felony or misdemeanor.

(2) The board shall require the applicant to arrange to provide [may submit identifying information] to the Texas Department of Public Safety a complete and legible set of fingerprints from a vendor approved by the Texas Department of Public Safety for the purpose of obtaining the applicant's criminal history record information unless fingerprints have been previously submitted for licensure on or after September 1, 2014 [and or other appropriate agencies requesting conviction records on all applicants about whom the executive director finds evidence to warrant a record search].

(3) The board will review the criminal history record information [conviction records of applicants] and will approve or disapprove applications as the evidence warrants. If the requested information is not provided [by the Texas Department of Public Safety and or other appropriate agencies] at least 10 days prior to the examination, an applicant may be permitted to take the UCPAE, with his or her scores subject to being voided. [An applicant may have his or her scores voided or may be denied the opportunity to take the UCPAE on the basis of a prior conviction pursuant to a hearing as provided for in the Act.]

(4) The examination eligibility fee of an applicant whose application to take the UCPAE has been denied under this section or §511.70 of this title (relating to Grounds for Disciplinary Action of Applicants) and who has not taken any portion of the examination shall be refunded.

(i) Unless an applicant has been convicted of an offense as described in subsection (a) of this section, the board will issue the license for which the applicant applied or a provisional license described in subsection (j) of this section.

(j) The board may issue a provisional license for a term of six months to an applicant who has been convicted of an offense described in subsection (a) of this section.

(k) The board shall revoke a provisional license if the provisional license holder:

(1) commits a new offense;

(2) commits an act or omission that causes the applicant's community supervision, mandatory supervision, or parole to be revoked, if applicable; or

(3) violates the law or rules governing the practice of public accountancy.

[(f) An applicant who has not been permitted to sit for the UCPAE as a result of having been convicted of a felony offense must provide evidence of rehabilitation as the board may request.]

[(g) The following procedure shall apply in the processing of an application for issuance of the CPA certificate.]

[(1) The applicant shall be asked to respond, under penalty of perjury, to the question if he or she has ever been convicted of a felony or misdemeanor.]

[(2) The board may submit identifying information to the Texas Department of Public Safety and or other appropriate agencies requesting conviction records on an applicant requesting issuance of the CPA certificate.]

[(3) The board shall review the individual applications and the conviction records of applicants and shall approve or disapprove applications as the evidence warrants. No CPA certificate or initial license may be issued to an applicant whose application for a CPA certificate has been denied. The board may disqualify a person from receiving a CPA certificate or initial license on the basis of a prior conviction pursuant to a hearing as provided for in the Act.]

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 November 14, 2019.

TRD-201904254

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: December 29, 2019

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


22 TAC §525.2

The Texas State Board of Public Accountancy (Board) proposes an amendment to §525.2, concerning Applications for or Renewal of a License for Licensees with Criminal Backgrounds.

Background, Justification and Summary

The amendment to §525.2 incorporates into the board's rules the standards found in Chapter 53 of the Occupations Code which were revised during the 86th Session of the Texas Legislature.

Fiscal Note

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

Public Benefit

The adoption of the proposed amendments will assist licensed CPAs in understanding what criminal events could cause disciplinary action to be taken against them by the board including the loss or suspension of their license or certificate.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

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

Government Growth Impact Statement

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

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8) Texas Government Code).

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on December 30, 2019.

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

Statutory Authority

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

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

§525.2.[Applications for or] Renewal of a License for Licensees with Criminal Backgrounds.

(a) The following [procedure] shall apply when renewing a license annually.

(1) Each licensee shall be asked in their license renewal application to affirm [to respond], under penalty of perjury, whether or not the licensee [to the question if he or she] has ever been convicted of a felony or misdemeanor of which the board has not previously been informed. [If the licensee responds in the negative and pays the required license fee, a renewal license shall be issued in accordance with established procedures. If the licensee responds affirmatively and pays the required license fee, the board may submit identifying information to the Texas Department of Public Safety and other appropriate agencies requesting conviction records on the licensee.]

(2) The board may consider an individual to have been convicted of an offense regardless of having received deferred adjudication and having the charges dismissed if the individual has not completed the period of supervision or the individual completed the supervision less than five years before the individual applied for license renewal. [The board shall review the conviction records and either approve or deny the application for a renewal license as the evidence warrants. The board shall refund any renewal fee submitted if the application is denied. The board may suspend or revoke or refuse to renew an annual license on the basis of a prior conviction pursuant to a hearing as provided for in the Act.]

(3) If the licensee has been convicted, as provided in paragraph (2) of this subsection, of an offense listed in Article 42A.054 of the Texas Code of Criminal Procedure, a sexually violent offense as defined by Article 62.001 of the Texas Code of Criminal Procedure, or a criminal offense which directly relates to the duties and responsibilities of the practice of public accountancy, the licensee may be subject to disciplinary action.

(4) In determining whether the felony or misdemeanor conviction directly relates to the duties and responsibilities of the practice of public accountancy, the board shall consider:

(A) the nature and seriousness of the crime;

(B) the relationship of the crime to the purposes for requiring a licensee to engage in the practice of public accountancy;

(C) the extent to which a license to practice public accountancy might offer an opportunity to engage in further criminal activity of the same type as that in which the licensee was previously involved;

(D) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of a CPA or public accountant; and

(E) any correlation between the elements of the crime and the duties and responsibilities of the practice of public accountancy.

(b) In determining the fitness to perform the duties and discharge the responsibilities of the licensed occupation of a licensee who has been convicted of a crime, the board shall consider, in addition to the factors listed in subsection (a)(4) of this section:

(1) the extent and nature of the licensee's past criminal activity;

(2) the age of the licensee when the crime was committed;

(3) the amount of time that has elapsed since the licensee's last criminal activity;

(4) the conduct and work activity of the licensee before and after the criminal activity;

(5) evidence of the licensee's rehabilitation or rehabilitative effort while incarcerated or after release;

(6) evidence of the licensee's compliance with any conditions of community supervision, parole, or mandatory supervision; and

(7) other evidence of the licensee's fitness, including letters of recommendation from:

(A) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the licensee;

(B) the sheriff or chief of police in the community where the licensee resides; and

(C) any other person in contact with the convicted licensee.

(c) It is the applicant's responsibility to obtain and provide to the board evidence regarding the factors listed in subsection (b) of this section.

(d) In addition to fulfilling the requirements of subsection (c) of this section, the licensee shall furnish proof in the form required by the board that the licensee has:

(1) maintained a record of steady employment;

(2) supported the licensee's dependents;

(3) maintained a record of good conduct; and

(4) paid all outstanding court costs, supervision fees, fines and restitution ordered in any criminal case in which the licensee has been convicted.

(e) As provided in §901.005(c) and (e)(3) of the Act (relating to Findings; Public Policy; Purpose), the public including the business community relies on the integrity of licensees and certificate holders in providing professional accounting services or professional accounting work. The board considers a conviction or placement on deferred adjudication for a felony or conviction or placement on deferred adjudication for the misdemeanor offenses listed in §519.7 of this title (relating to Criminal Offenses that May Subject a Licensee or Certificate Holder to Discipline or Disqualify a Person from Receiving a License) to be evidence of an individual lacking the integrity necessary to be trusted with confidential client information, client funds and assets which directly relates to the duties and responsibilities of a licensee in the practice of public accountancy. A licensee who is convicted of a felony or repeatedly violates the law may lack the integrity to enjoy the public's trust and the privilege of being a CPA.

(f) The board shall require each licensee on a one-time basis seeking renewal of their license to arrange to provide to the Texas Department of Public Safety a complete and legible set of fingerprints from a vendor approved by the Texas Department of Public Safety for the purpose of obtaining the licensee's criminal history record information unless fingerprints have been previously submitted for licensure on or after September 1, 2014 by the licensee.

[(b) The board may suspend the license or revoke the certificate as a result of a licensee's prior conviction of a crime relevant to the license and/or certificate following the opportunity for a hearing as provided for in the Act. The board shall notify the person in writing of the reasons for the suspension, revocation, denial or disqualification.]

[(c) The board shall revoke a certificate for a felony offense that does not relate to the duties and responsibilities of a licensee when the felony conviction occurred less than five years before the date the person applies for a license renewal or the board becomes aware of the conviction and shall revoke a certificate for an offense listed in Article 42A.054 of the Code of Criminal Procedure or a sexually violent offense as defined in Article 62.001 of the Code of Criminal Procedure.]

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 November 14, 2019.

TRD-201904255

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: December 29, 2019

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


22 TAC §525.3

The Texas State Board of Public Accountancy (Board) proposes an amendment to §525.3, concerning Criminal Background Checks.

Background, Justification and Summary

The amendment to §525.3 clarifies the Board's requirement for the fingerprints of applicants and licensees and the review of their criminal history records to assure the public's protection.

Fiscal Note

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

Public Benefit

The adoption of the proposed amendment is intended to help the licensee's awareness of the need for them to provide the board with a legible set of their fingerprints.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

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

Government Growth Impact Statement

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

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8) Texas Government Code).

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on December 30, 2019.

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

Statutory Authority

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

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

§525.3.Criminal Background Checks.

(a) Applicants to take the UCPAE and licensees applying for license renewal shall arrange to provide to the Texas Department of Public Safety a complete and legible set of fingerprints from a vendor approved by the Texas Department of Public Safety for the purpose of obtaining the applicant's or licensee's criminal history record information unless the fingerprints have been previously submitted after September 1, 2014. Once fingerprints have been provided, additional fingerprints will not be required so long as the fingerprints provided were complete and legible. [The board may require a Federal Bureau of Investigation criminal history records background check on applicants to become licensed, registered, or certified in Texas at any stage in the application process.]

[(b) Applicants required to provide the Federal Bureau of Investigation criminal history records background check will be responsible for the cost of searching the database.]

[(c) Applicants will be provided with information on how to obtain the Federal Bureau of Investigation criminal history records background check through the Texas Department of Public Safety, and the Texas Department of Public Safety will provide the records directly to the board.]

(b) [(d)] Criminal history record information obtained from the Texas Department of Public Safety and [and/or] the Federal Bureau of Investigation will be maintained pursuant to §411.084 of the Texas Government Code in order to protect the confidentiality of the information.

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 November 14, 2019.

TRD-201904256

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: December 29, 2019

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