Adopted Rules Title 25

TITLE 25. HEALTH SERVICES

Part 1. DEPARTMENT OF STATE HEALTH SERVICES

Chapter 295. OCCUPATIONAL HEALTH

Subchapter J. TEXAS MOLD ASSESSMENT AND REMEDIATION RULES

25 TAC §§295.301 - 295.338

The Executive Commissioner of the Health and Human Services Commission (commission), on behalf of the Department of State Health Services (department), adopts amendments to §§295.301 - 295.338, concerning the regulation of mold-related activities that affect indoor air quality. The amendments to §§295.301, 295.308 - 295.310, 295.312, 295.313, 295.315, 295.318, 295.325 - 295.327 and 295.338 are adopted with changes to the proposed text as published in the December 8, 2006, issue of the Texas Register (31 TexReg 9802). The amendments to §§295.302 - 295.307, 295.311, 295.314, 295.316, 295.317, 295.319 - 295.324, and 295.328 - 295.337 are adopted without changes and, therefore, these sections will not be republished.

BACKGROUND AND PURPOSE

The amendments implement three House Bills (HB) passed during the 79th Legislature, Regular Session (2005). House Bill 74 added §1958.155(d) to the Occupations Code, which allows licensed school district employees to perform both mold assessment and mold remediation on the same project for their school district. House Bill 1328 amended §1958.154(b) of the Occupations Code to require the seller of a property to provide the Certificate of Mold Damage Remediation to the buyer only if issued within the preceding five years. House Bill 2746 added §1958.105(b) to the Occupations Code, which requires lowering the passing grade for the state exam from 80% to 70%. For consistency with this legislative requirement, the passing grade requirement for exams given in accredited training courses is lowered from 80% to 70%.

Other amendments delete language that has expired; revise the language to reflect changes in the name and function of the agency, programs, and staff; clarify the legislative intent; correct incorrect language; revise the fee information to reflect the two-year license as standard and adds the Texas Online subscription fee; reduce the number of questions for the refresher course test; change the notification requirements to enable a more effective on-site investigation; and correct grammatical and punctuation errors in the rules. Expired language in the rules that refers to requirements applicable only prior to January 1, 2005, was deleted. An unnecessary requirement requiring about half the renewing licensees to take an additional refresher course caused by staggering the one-year and two-year license renewals was deleted. Agency contact information was added. Additions or rewording were made to provide better clarity or to remove unnecessary restrictions on the applicants.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 295.301 - 295.338 have been reviewed and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are needed.

SECTION-BY-SECTION SUMMARY

In §295.301, a new subsection (e) was added to provide agency contact information and summarize information available on the website.

In §295.302, Definitions, a new definition, "Certificate of Mold Damage Remediation," was added to clarify that the certificate referred to in the rules is the one provided by the Texas Department of Insurance (TDI). In the definition of "Facility," the word "structure" was deleted, as it was redundant and confusing. The new definition of "Managing agent" was added to clarify the intent of this term. The definitions of "Project" and "Start date" were reworded to be clearer. Language was added to the definition of "Start date" to clarify that preparation work is not considered part of mold remediation. The definition of "Stop date," was reworded for clarity. In the definition of "Supervise," the language "within ten minutes" was added after "accessible by telephone" to ensure adequate supervision is available when necessary.

In §§295.302, 295.308(b), 295.309(b), 295.310(c), 295.318(b)(3), and 295.325(b), language affected by the agency's reorganization was revised to reflect the changes. For example, in §295.302, the definitions of "Commissioner" and "Department" were reworded to be consistent with the new agency's name. The definition of "Program Administrator" was deleted, as the position no longer exists after the reorganization. In the other sections, all references to Program Administrator were reworded to the appropriate new contact; the "Texas Department of Health" was changed to "Department of State Health Services"; invalid telephone numbers were deleted; and obsolete division and program names were replaced with the appropriate new unit or group name.

In §§295.302(25), (26), (39), and (40), 295.308(a)(2), and (g), 295.309(c)(1), (d), and (d)(2), 295.315(f), (f)(5), and (9), 295.322(d), 295.325(a) - (d), 295.330(c)(2), 295.334(b), 295.335(c), 295.336 and 295.337, punctuation, grammar, and minor language changes (rewording, additions, and deletions) were made to improve the clarity of the sections.

In §295.303(f), the second sentence was reworded to clarify that only unlicensed and supervised persons doing mold remediation are required to be registered, but not those doing assessment.

In §295.304(b)(1), the word "license" was replaced by the broader word "credential."

In §295.305(e)(2) and (3), the phrase "and no earlier than 12 months prior to the expiration date of the license," and in §295.305(g)(3), the phrase "before the expiration date of the license but no earlier than 12 months prior to the expiration date of the license and" were deleted because this requirement caused an extra and unnecessary refresher training for a significant number of licensees and registrants.

In §§295.305(e)(1) - (3) and (h), 295.308(a)(2), 295.310(a)(2), 295.311(a), (c), and (e), 295.312(a), (c), and (e), 295.314(a), 295.315(a), (c), and (e), and 295.316(a), the expired language in these paragraphs was deleted and reworded as necessary for clarity. Language that referred to activities that were grandfathered (applicable only before January 1, 2005) was deleted in these paragraphs.

In §§295.305(f), 295.310(a)(1) and (e), 295.311(e)(1)(D), and 295.312(e)(1)(C), the passing grade for the state exam was lowered from 80% to 70% as required by the legislation. In §295.315(e)(1)(D), the 70% requirement for passing the state exam was added for clarity. To be consistent with this state exam requirement, in §295.318(b)(10) and §295.320(g), the passing score requirement for the training providers was lowered from 80% to 70%.

In §295.306(c), the language "and the property owner, if not the same" was added so that the property owner must be given a copy of the Consumer Mold Information Sheet.

In §295.306(d), the language was changed to allow credentialed persons to give notification of violations by the next business day instead of within 24 hours.

In §295.307, a new subsection (c) was added to allow licensed school district employees to perform both mold assessment and mold remediation on the same project for their school district as required by the legislation.

In §295.308(a)(2), the wording was changed so only individuals that are applying for credentials are required to submit facial photographs. Also, the wording "one-inch by one-inch" was replaced with "one-inch square" for consistency with other sections of the rules.

In §§295.308(a)(2), 295.318(f)(6)(C) and (7)(B), and 295.320(d)(5)(B), the language "passport-quality color" was added before the word "photograph" to indicate the quality of photograph required by the department.

In §295.308(c) and §295.319(c), language was added to let the credentialed persons know that they have 90 days to respond to a department deficiency notice or the application will be denied.

In §295.308(e), language was added to let the credentialed persons know that they are responsible "to renew their credential whether or not they have received the notification from the department."

In §295.309(b), the notice of cancellation for insurance policies was changed from a 30-day to 10-day period to conform to standard policies and lower the cost.

In §295.309(d)(2), the language "the policy shall promptly be renewed or replaced without any lapse in coverage" was deleted because the policy only needs to be replaced if the licensee continues in the business.

In §295.310(f), the wording was changed to allow the department to provide either written or verbal analysis of the state exam.

In §§295.311(d), 295.312(d), 295.313(d), 295.314(c), 295.315(d), 295.316(c), 295.317(d), and 295.318(d), the fee rates were revised to reflect the two-year license and the Texas Online subscription fee requirements.

In §§295.312(b)(9) and (f)(11), 295.313(f)(9), 295.315(f)(12), 295.326(c)(2)(C), title of §295.327, 295.327(b), 295.338(a) and (b), every use of the words "certificate of mold remediation" was changed to the words "Certificate of Mold Damage Remediation" to clarify that the certificate referred to in the rules is the same one provided by the TDI.

In §295.315(e)(1)(C), the application submittal time after completing the initial training course was increased from six months to twelve months as six months was determined to be unnecessarily restrictive.

In §295.315(f), a new paragraph (1) was added to clarify that the "supervision of mold remediation workers" is a primary responsibility of the mold remediation contractor.

In §295.315(f)(5) and §295.316(e)(3), the language "preparation work" after "mold remediation" was added to clarify that providing the information is required before any work begins.

In §295.315(f)(9), the phrase "who conduct activities specified under paragraph (4) of this subsection" was deleted as incorrect and unnecessary.

In §295.318(b)(1), the language "Training provider's courses for mold remediation workers may use only department-approved instructors" was added to clarify the rule's intent.

In §295.318(f)(6)(C), (7)(B) and (C) and §295.320(d)(4)(B) and (5)(B), the word "photo" was replaced with "photograph" for consistency and clarity.

In §295.318(f)(7)(C), the word "color" was added to indicate what type of photograph is required.

In §295.319(c), the notification time for the department to acknowledge receipt of the application was changed from 30 to 10 working days. The words "After review of the application, the department will" were added to indicate when the applicant would be notified of the deficiencies. The words "within 60 days" were added to indicate when an application would be approved or denied after receipt of a complete application.

In §295.319(c)(8)(A), the term "school's" was replaced with the more descriptive term "training facility's."

In §295.320(d), the words "work on a" and "project" were deleted to clarify that it is the "mold remediation" not a "project" that is regulated.

In §295.320(g), the word "initial" was added before the words "test" and "tests" and the sentence "The refresher tests shall consist of at least ten questions" was added to reduce the number of refresher test questions.

In §295.321(e), language was added to clarify that the mold remediation protocol is specific to each project.

In §295.321(e)(4), language was added to clarify that the respirator is recommended during all mold-related activities when exposure to mold could or would be possible.

In §295.322(b), language was added to clarify that the work plan is specific to each project, fulfills the requirements of the mold remediation protocol, and contains the specific instructions or operating procedures.

In §295.322(e), language was added to clarify that signage is required for mold remediation projects at all accessible entrances.

In §295.323(c), language was added to clarify that registered workers shall follow all requirements regarding use of disinfectants.

In §295.324(a), language was changed to clarify that containment is used "during remediation."

In §295.325(a) - (d), language was added to clarify that notification is required only for mold remediation, and that the start time and stop time must be included on the notification form. The word "project" or "activity" was deleted after "mold remediation" to avoid confusion between the meaning of "remediation" and "project," for consistency and to clarify the intent. The words "as defined in §295.302(27)" were added after the words "mold remediation" to clarify the intent. Language was added to clarify that information from "the most recent notice" must be used. The language "with the department by phone" after the word "confirm" was added to specify who and how the contractor needs to confirm the information. The language "for each week (seven calendar day period)" was deleted, as it does not allow the department adequate notification to investigate remediation work.

In §295.326(a), the language "a period of three years..." was deleted as it was confusing, and was replaced with "the time specified in subsection (b)(2) of this section for remediators, subsection (c)(2) of this section for assessors, subsection (d) of this section for mold analysis laboratories, and subsection (e)(1) of this section for training providers" that directs licensees to the correct information.

In §295.326(c)(1)(A), the word "certificate" was replaced with the correct word "credential" because it is a broader term.

In §295.327(d), the language was reworded to reflect that the seller of a property is required to provide the Certificate of Mold Damage Remediation to the buyer only if issued within the preceding five years.

In §295.328, the language "The complaint form is available on the department's website" was added to indicate where the form is available.

In §295.329(c), the wording "in pursuance of" was replaced with the word "conducting" and the words "in advance" were added after the word "notify" for clarity.

In §295.330(a) and (c), the language relating to suspending credentials on an "emergency basis" was deleted because it is not supported by the statute.

In §295.331(d)(1), (2) and (3), the word "safety" was deleted as potentially confusing because of language in Occupations Code, §1958.058.

In §295.332(a), the word "conclusive" was deleted as unnecessary because it was too strict a standard.

In §295.333(d), the language "exercise the opportunity for" was replaced with "request" to clarify and simplify. The language "the penalty imposed" was added for clarity.

In §295.334(a), the language "Chapter 2001" was deleted as repetitive.

COMMENTS

The department, on behalf of the commission, has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period, which the commission has reviewed and accepts. The commenters were one individual, one school district (Katy Independent School District), and four companies (Cole Technologies, EFI Global, Inc., Enviro-Con Services, Inc., and J3 Resources, Inc). One commenter was against the rules in their entirety but had no recommendations for changes. The other commenters were not against the rules in their entirety; however, they suggested recommendations for change as discussed in the summary of comments.

Comment: Concerning the rules in general, one commenter noted that the terminology for the Consumer Mold Information Sheet and the Certificate of Mold Damage Remediation should be uniform throughout.

Response: The commission agrees and changes were made throughout the rules to make the terms consistent. In §295.301(e), the word "Mold" was added to correct the title to: "Consumer Mold Information Sheet." In §§295.312(b)(9) and (f)(11), 295.313(f)(9), 295.315(f)(12), 295.326(c)(2)(C), 295.327(b) and (d), and 295.338(a) and (b), all references to the "Certificate of Mold Damage Remediation" were reworded to read the same.

Comment: Concerning the rules in general, one commenter noted that the word "building" is not defined and, therefore, the word "facility", which is defined, should be used in place of the word "building".

Response: The commission disagrees because this comment does not specifically address these amendments and will not be considered at this time, but will be considered in future rule changes. No change was made to the rules as a result of this comment.

Comment: Concerning §295.302, one commenter requested the word "client" be defined to clarify who exactly the client is.

Comment: Concerning §295.302(6), one commenter wanted the terminology used by the TDI on the Certificate of Mold Damage Remediation (CMDR) to be the same as that in the Texas Mold Assessment and Remediation Rules.

Response: The commission agrees in part. The name of the CMDR in the proposed rules was changed to agree with that used by the TDI. The language each agency uses is based on its statute. The department does not have the authority to require the TDI to use specific language or documentation. No change was made to the rule as a result of this comment.

Comment: Concerning §295.302(40), one commenter did not want the definition of "stop-date" to be changed as it is unnecessary and will add more confusion to companies having to comply with both the Texas Asbestos Rules and the Mold Rules, which define the term differently.

Response: The commission disagrees. The change made in the proposed rules did not change the intent of the previous definition, but is a clarification of language to make it easier to understand. No change was made to the rule as a result of this comment.

Comment: Concerning the definition of "stop-date" in §295.302(40), one commenter suggested the definition of "stop-date" be changed to "the date clearance is achieved for the project," not the day after clearance as presently defined, because the proposed definition would be consistent with the same definition in the asbestos rules.

Response: The commission disagrees with the comment. In §295.325(d), the contractor is required to notify the department 24 hours prior to any change in the "stop-date." If, however, clearance is achieved a day or more before the scheduled stop-date, the contractor would not have adequate time to notify the department of the new stop date and would be in violation of the rules. The definition gives the contractor time to notify the department. No change was made to the rule as a result of this comment.

Comment: Concerning §295.302(44), one commenter requested that the definition of "training hours" be changed to include a lunch period as part of the training hours, because a "class from 8:00 a.m. to 4:00 p.m. is plenty of time to cover all subjects." The commenter noted that lunch is included under this definition in the asbestos rules.

Response: The commission disagrees because the number of training hours specified in the rules is necessary to adequately cover the required subject material. No change was made to the rule as a result of this comment.

Comment: Concerning §295.303(a)(1), one commenter would like the department to change the rules to exclude mold found during routine maintenance in school districts.

Response: The commission disagrees because Texas Occupations Code, §1958.002(b), does not allow the department to make this change. No change was made to the rule as a result of this comment.

Comment: Concerning §295.303(b), one commenter asked if the department thought the 25 square feet limit would be changed.

Response: The commission disagrees because Texas Occupations Code, §1958.102(c), specifically established the limit to be an area of 25 contiguous square feet, and the rule text cannot be changed. No change was made to the rule as a result of this comment.

Comment: Concerning §295.303(f), one commenter wanted to delete the phrase "mold assessment or" from the subsection. The commenter stated that it is a loophole for consultants not to be required to have their employee licensed as a technician.

Response: The commission disagrees because Texas Occupations Code, §1958.102(b), requires this wording and this exemption. No change was made to the rule as a result of this comment.

Comment: Concerning §295.305(d), one commenter requested that a requirement be added that a training provider must also maintain an office in Texas. The commenter stated that this obligation is the only way for a state inspector to have access to training records, because the commenter believes the staff does not have the money to travel out-of-state to audit training providers.

Comment: Concerning §295.305(g), one commenter did not understand what is meant by the word "approval." The commenter thinks the word "credential" covers licenses, accreditations and registrants.

Response: The commission disagrees and clarifies that the word "approval" refers to "approving" the instructors or courses submitted by training providers as required in the rules. No change was made to the rule as a result of this comment.

Comment: Concerning §295.305(g)(3), one commenter requested a change to the refresher course requirements to give a grace period if a licensee is unable to take the refresher course within the required time period instead of having to take the 40-hour initial course again.

Response: The commission disagrees because there is already a 180 day period in §295.308(g), which includes time for taking the required refresher course if necessary. No change was made to the rule as a result of this comment.

Comment: Concerning §295.305(i) and §295.306(b), one commenter requested a requirement for all credentialed individuals to have their trainer-issued ID cards present at the worksite because it would enable the state inspectors to verify if the individual's training is valid during a site inspection. Without the trainer's ID card, the inspector cannot determine if the credentialed person's training is valid.

Comment: Concerning §295.307(c), one commenter requested rewording this subsection to allow school districts to share licensees between different school districts. For example, if one district does not have any or enough licensed mold assessors or remediators to address its mold problem, the district could call on another school district that has the needed licensed individuals to work on its project.

Response: The commission disagrees because the statute does not allow the department to make this change. The statute, Texas Occupations Code, §1958.155(d), contains the language repeated in the rule. No change was made to the rule as a result of this comment.

Comment: Concerning §295.309(a), one commenter stated that the requirement to have a $1,000,000 liability insurance policy should not be required for consultants who may never oversee remediation or, even if they do, the liability insurance should be only the remediator's duty. The commenter's concern is the cost of the insurance.

Comment: Concerning §295.317(a), one commenter requested a requirement for all branches of a licensed mold laboratory to be individually licensed instead of issuing one license that covers the main and all branch laboratories. The commenter's concern is the licensed laboratory could open a branch laboratory at another location that may not have the same qualified personnel as the main laboratory. The commenter feels these branch facilities should be required to demonstrate the same competence to perform the analysis as the main facility.

Comment: Concerning §295.318(b)(2)(A), one commenter requested for training providers to combine the refresher course for the mold assessment consultants with that of the mold assessment technicians. The commenter feels the lack availability of refresher courses for the technicians is a problem and combining the courses would resolve this problem. The commenter felt the small differences in the training requirements for these two licensees could be handled without confusing the students.

Comment: Concerning §295.324(a), one commenter requested to allow a mold assessment technician to do a post-remediation visual or clearance testing on site without on-site supervision by a mold assessment consultant. The commenter felt that if technicians can do the initial assessment, including collecting samples and measurements and developing the scope of work/recommendations for the final report, then they could do the clearance visual and sampling without a consultant being on site.

Response: The commission disagrees because the mold assessment technician may not be adequately trained or may not have the necessary experience to handle this responsibility. No change was made to the rule as a result of this comment.

Comment: Concerning §295.326(c)(1)(A), one commenter believed the proposed language was to change the word "credential" to "certificate" and wanted the word "credential" used instead because it was more accurate.

Response: The commission agrees with the commenter's intent. However, in the section cited, the proposed language did not meet the intent of the commenter, but the error of concern was found in §295.308(e) and the change was made.

The department staff, on behalf of the commission, has corrected the following typographical errors and the commission has reviewed and agrees to the following corrections.

Concerning §§295.308(b), 295.309(b), 295.310(c), and 295.318(b)(3), the title "Environmental Sanitation Licensing Group" was corrected to "Environmental and Sanitation Licensing Group."

Concerning §295.325(a), the referencing for "§295.302(27)" was corrected to "§295.302(28)."

Concerning §295.308(b), the website www.tdh.state.tx.us/beh/mold was changed to www.dshs.state.tx.us/mold.

LEGAL CERTIFICATION

The Department of State Health Services, General Counsel, Cathy Campbell, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

STATUTORY AUTHORITY

The amendments are authorized by Texas Occupations Code, §1958.053, which allows the department to adopt rules; and Texas Government Code, §531.0055, and Texas Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department, and for the administration of Texas Health and Safety Code, Chapter 1001. Review of the sections implements Texas Government Code, §2001.039.

§295.301.General Provisions.

(a) Purpose. This subchapter implements the provisions of the Texas Occupations Code, Chapter 1958 (relating to Mold Assessors and Remediators), concerning the regulation of mold assessors and remediators conducting mold-related activities that affect indoor air quality.

(b) Scope. This subchapter contains requirements for the licensing and registration of persons performing mold assessments and mold remediation, requirements for the accreditation of mold training providers, minimum work standards for the conduct of mold assessments and remediation by licensed and registered persons, a code of ethics, and penalties.

(c) Severability. Should any section or subsection in this subchapter be found to be void for any reason, such finding shall not affect any other sections.

(d) TexasOnline. The department is authorized to collect subscription and convenience fees, in amounts determined by the TexasOnline Authority, to recover costs associated with processing applications, examinations, and notifications specified under this subchapter through TexasOnline, in accordance with the Texas Government Code, Chapter 2054, §2054.111 (relating to Use of TexasOnline Project).

(e) Department information. For the most recent telephone and facsimile numbers for contacting or submitting information to mold notification and licensing personnel, visit the department's website: www.dshs.state.tx.us/mold. From this website you can also view and/or download the mold rules and applicable legislation; application, notification, and complaint forms; Consumer Mold Information Sheet; Certificate of Mold Damage Remediation; listing of current licensees and accredited trainers; and Frequently Asked Questions. The telephone numbers for general questions are (800) 572-5548 (toll-free), or (512) 834-6770.

§295.308.Credentials: Applications and Renewals.

(a) General requirements. Applications for a license, registration or accreditation must be made on forms provided by the department and signed by the applicant. The department shall consider only complete applications. The application form must be accompanied by:

(1) a check or money order for the amount of the required fee made payable to the department, unless the application fee is paid through TexasOnline, as provided under the Texas Government Code, Chapter 2054, §2054.252 (relating to TexasOnline Project);

(2) for individuals applying for a credential, a current one-inch square passport-quality color photograph of the applicant's face with a white background. A copy of the wallet-size photo-identification card from the applicable training course as required under §295.318(f)(6)(B) of this title (relating to Mold Training Provider: Accreditation) must also be submitted; and

(3) proof that the applicant meets all other requirements for obtaining the credential being sought.

(b) Inquiries. Applicants who wish to discuss or obtain information concerning qualification requirements may contact the Department of State Health Services, Environmental and Sanitation Licensing Group. Applicants may visit the Mold Licensing Program's website at www.dshs.state.tx.us/mold to obtain information and download forms.

(c) Denials. The department may deny a credential to a person who fails to meet the standards established by this subchapter. Failure of the applicant to submit the required information and/or documentation within 90 days of issuance of a written notice of deficiency from the department will result in the application being denied.

(d) Processing applications and renewals.

(1) Reimbursement of fees. The department shall refund application fees, less an administrative fee of $50 ($20 for remediation worker applications), if an applicant does not meet the requirements for the credential. The department shall refund fees paid in excess of the amounts required under this subchapter, less a $10 administrative fee. The department will not refund fees if the application was abandoned due to the applicant's failure to respond to a written request from the department for a period of 90 days.

(2) Contested case hearing. The applicant has the right to request a hearing in writing within 30 days of the date on the department's letter denying the credential. The hearing will be conducted in accordance with the Administrative Procedure Act (Texas Government Code, Chapter 2001) and the department's formal hearing rules in Chapter 1 of this title.

(e) Renewal notices. At least 60 days before a person's license, registration, or accreditation is scheduled to expire, the department shall send a renewal notice by first-class mail to the person's last known address from the department's records. A person credentialed by the department retains full responsibility for supplying the department with a correct current address and phone number, and to take action to renew their credential whether or not they have received the notification from the department. The renewal notice will state:

(1) the type of credential requiring renewal;

(2) the time period allowed for renewal;

(3) the amount of the renewal fee; and

(4) how to obtain and submit a renewal application.

(f) Renewal requirements. A person seeking to renew a license, registration, or accreditation shall submit a renewal application no sooner than 60 days before the credential expires. The department shall renew the license, registration, or accreditation for a term as provided under §295.305(h) of this title (relating to Credentials: General Conditions) if the person:

(1) is qualified to be credentialed;

(2) pays to the department the nonrefundable renewal fee;

(3) submits to the department a renewal application on the prescribed form along with all required documentation; and

(4) has complied with all final orders resulting from any violations of this subchapter, unless an exception is granted in writing by the department and submitted with the application.

(g) Renewals. A person shall not perform any mold-related activity with an expired license, registration, or accreditation. If a person makes a timely and complete application for the renewal of a valid credential, the credential does not expire until the department has finally granted or denied the application. The department shall renew a credential that has been expired for 180 days or less if the person meets the requirements of subsection (f) of this section. A person whose credential has been expired for more than 180 days must obtain a new credential and must comply with current requirements and procedures, including any state examination requirements.

(h) Replacements. A person desiring a replacement credential or ID card shall submit a request in writing on a department-issued form with a $20 fee.

§295.309.Licensing: Insurance Requirements.

(a) Persons required to have insurance must, at a minimum, obtain policies for commercial general liability insurance in the amount of not less than $1 million per occurrence. Governmental entities that are self-insured are not required to purchase insurance under this subchapter. A non-governmental entity (business entity or individual) may be self-insured if it submits to the department for approval an affidavit signed by an authorized official of the entity or by the individual stating that it has a net worth of at least $1 million. A current financial statement indicating a net worth of at least $1 million must accompany the affidavit. A new affidavit and current financial statement must be submitted with each renewal application. An individual required to have insurance must obtain individual coverage unless covered under the policy of the individual's employer or employed by a governmental entity or a person approved by the department to be self-insured. Insurance policies required under this section must be currently in force and must be written by:

(1) an insurance company authorized to do business in Texas;

(2) an eligible Texas surplus lines insurer as defined in the Texas Insurance Code, Article 1.14-2 (relating to Surplus Lines Insurance);

(3) a Texas registered risk retention group; or

(4) a Texas registered purchasing group.

(b) The certificate of insurance must be complete, including all applicable coverages and endorsements, and must name the Department of State Health Services, Environmental and Sanitation Licensing Group, as a certificate holder. Each required policy shall be endorsed to provide the department with at least a 10-day notice of cancellation or material change for any reason.

(1) a copy of the required current certificate of insurance;

(2) if claiming to be self-insured, a statement that it is a governmental entity, or, if a non-governmental entity, the affidavit and current financial statement described under subsection (a) of this section; or

(3) proof that the applicant is employed by a licensed mold assessment or remediation company that has the required insurance.

(d) The department may impose an administrative penalty or take other disciplinary action against any person who fails to have the current insurance required under this section.

(1) If a policy is canceled or materially changed, the licensee shall notify the department in writing not later than 20 calendar days prior to the change or cancellation effective date. A licensed company may file a single notification for the company and its licensed employees.

(2) If a policy expires or is canceled or materially changed, the licensee shall cease work. Prior to resuming work, the licensee must either:

(A) provide to the department a certificate of the renewal or replacement policy; or

(B) submit to the department the affidavit and current financial statement described under subsection (a) of this section and receive departmental approval to be self-insured.

(3) If an individual licensee ceases to be covered under an employer's insurance, the individual must obtain replacement coverage either individually or through a new employer. The individual must submit the documentation required under subsection (c) of this section to the department before engaging in any mold-related activities.

§295.310.Licensing: State Licensing Examination.

(a) Examination requirements. An applicant for an initial individual license who has successfully completed the required training course from a department-accredited training provider must pass the state examination with a score of at least 70% correct prior to applying for the license. The applicant must pass the examination within six months of completing the training course.

(b) Re-examination. An individual is permitted to take two re-examinations after failing an initial examination. An individual who fails both re-examinations must repeat the initial training course, submit a new application for the state examination, and provide a copy of the new training certificate.

(c) Scheduling and registration. Annually, the department shall publish a schedule of examination dates and locations. Training providers shall provide state examination schedules as a part of their instruction. Registrations must be submitted by mailing, faxing, or e-mailing a registration form to the Department of State Health Services, Environmental and Sanitation Licensing Group and must be received by the department no later than five working days before the examination date. Information on the examination schedule and assistance with registration is available by contacting the Department of State Health Services, Environmental and Sanitation Licensing Group. Entrance into the examination site will be allowed only upon presentation of a valid photo identification from an accredited training provider. Companies with 30 or more employees to be tested may call the department to arrange an additional examination date for a $50 per person examination fee.

(d) Fees. A fee of $25 is required for any examination or re-examination. A fee of $50 per person shall be paid for examinations administered at locations and times other than those published. The department must receive the required fees no later than five working days before the examination.

(e) Grading and reporting of examination scores. A grade of at least 70% correct must be achieved in order to pass the examination. Scores will be reported only by mail no later than 30 working days after the date the examination is taken. Information regarding re-examination, if necessary, will be included.

(f) Request for information concerning examination. If requested in writing by an individual who fails a licensing examination, the department shall furnish the individual with an analysis of the individual's performance on the examination.

§295.312.Mold Assessment Consultant: Licensing Requirements.

(a) Licensing requirements. Unless exempted under §295.303 of this title (relating to Exceptions and Exemptions), an individual must be licensed as a mold assessment consultant to perform activities listed under subsection (b) of this section. A licensed mold assessment consultant who employs two or more individuals required to be licensed under this section or §295.311 of this title (relating to Mold Assessment Technician: Licensing Requirements) must be separately licensed as a mold assessment company under §295.313 of this title (relating to Mold Assessment Company: Licensing Requirements), except that an individual licensed as a mold assessment consultant and doing business as a sole proprietorship is not required to be separately licensed under §295.313 of this title.

(b) Scope. An individual licensed under this section is also licensed to perform all activities of a mold assessment technician listed in §295.311(b) and (f) of this title. In addition, a licensed mold assessment consultant is licensed to:

(1) plan surveys to identify conditions favorable for indoor mold growth or to determine the presence, extent, amount, or identity of mold or suspected mold in a building;

(2) conduct activities recommended in a plan developed under paragraph (1) of this subsection and describe and interpret the results of those activities;

(3) determine locations at which a licensed mold assessment technician will record observations, take measurements, or collect samples;

(4) prepare a mold assessment report, including the observations made, measurements taken, and locations and analysis results of samples taken by the consultant or by a licensed mold assessment technician during the mold assessment;

(5) develop a mold management plan for a building, including recommendations for periodic surveillance, response actions, and prevention and control of mold growth;

(6) prepare a mold remediation protocol, including the evaluation and selection of appropriate methods, personal protective equipment (PPE), engineering controls, project layout, post-remediation clearance evaluation methods and criteria, and preparation of plans and specifications;

(7) evaluate a mold remediation project for the purpose of certifying that mold contamination identified for the remediation project has been remediated as outlined in a mold remediation protocol;

(8) evaluate a mold remediation project for the purpose of certifying that the underlying cause of the mold has been remediated so that it is reasonably certain that the mold will not return from that remediated cause; and

(9) complete appropriate sections of a Certificate of Mold Damage Remediation as specified under §295.327(b) of this title (relating to Photographs; Certificate of Mold Damage Remediation; Duty of Property Owner).

(c) Qualifications. In addition to the requirements for all applicants listed in §295.305 of this title (relating to Credentials: General Conditions) and §295.309 of this title (relating to Licensing: Insurance Requirements), an applicant must meet at least one of the following education and/or experience requirements:

(1) a bachelor's degree from an accredited college or university with a major in a natural or physical science, engineering, architecture, building construction, or building sciences, and at least one year of experience in an allied field;

(2) at least 60 college credit hours with a grade of C or better in the natural sciences, physical sciences, environmental sciences, building sciences, or a field related to any of those sciences, and at least three years of experience in an allied field;

(3) a high school diploma or a General Educational Development (GED) certificate and at least five years of experience in an allied field; or

(4) certification as an industrial hygienist, a professional engineer, a professional registered sanitarian, a certified safety professional, or a registered architect, with at least one year of experience in an allied field.

(d) Fees. The fees for a mold assessment consultant license are:

(1) $600 for the license; and

(2) a required Texas Online subscription and convenience fee.

(e) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals). An applicant shall include the following in the application package:

(1) if the application is for an initial license:

(A) verifiable evidence that the applicant meets at least one of the eligibility requirements under subsection (c)(1) - (4) of this section;

(B) proof of compliance with the insurance requirement specified in §295.309 of this title;

(D) a copy of a certificate of training as described in §295.320(c) of this title (relating to Training: Required Mold Training Courses); or

(2) if the application is for renewal of a license:

(A) a copy of a certificate of training as described in §295.320(g) of this title, unless the applicant is exempt under §295.305(g)(3) of this title; and

(B) proof of compliance with the insurance requirement specified in §295.309 of this title.

(f) Responsibilities. In addition to the requirements listed in §295.306 of this title (relating to Credentials: General Responsibilities), a licensed mold assessment consultant shall:

(1) provide adequate consultation to the client to diminish or eliminate hazards or potential hazards to building occupants caused by the presence of mold growth in buildings;

(2) provide, in accordance with a client's instructions, professional services concerning surveys, building conditions that have or might have contributed to mold growth, proper building operations and maintenance to prevent mold growth, and compliance with work practices and standards;

(3) comply with mold sampling protocols as presented in training course materials or as required by his/her employer;

(4) inquire of the client whether any hazardous materials, including lead-based paint and asbestos, are present in the project area;

(5) ensure that all employees who will conduct mold assessment activities are provided with, fit tested for, and trained in the correct use of personal protection equipment appropriate for the activities to be performed;

(6) ensure that the training and license of each licensed employee are current, as described in §295.320 of this title and §295.311 or §295.312 of this title, respectively;

(7) provide to the client a mold assessment report following an initial (pre-remediation) mold assessment. If the consultant includes the results of the initial assessment in a mold remediation protocol or a mold management plan, a separate assessment report is not required;

(8) provide to the client a mold remediation protocol before a remediation project begins;

(9) utilize the services of a laboratory that is licensed by the department to provide analysis of mold samples;

(10) if he/she performs post-remediation assessment on a project and ceases to be involved with the project before it achieves clearance, provide a final status report to the client and to the mold remediation contractor or company performing mold remediation work for the client as specified under §295.324(e) of this title (relating to Post-Remediation Assessment and Clearance);

(11) provide a passed clearance report to the client as specified under §295.324(d) of this title and complete applicable sections of a Certificate of Mold Damage Remediation as specified under §295.327(b) of this title (relating to Photographs; Certificate of Mold Damage Remediation; Duty of Property Owner);

(12) comply with recordkeeping responsibilities under §295.326(c) of this title (relating to Recordkeeping);

(13) sign and date each mold assessment report and each mold management plan that he/she prepares and include his/her license number and expiration date on each report and each plan;

(14) sign and date each mold remediation protocol on the cover page, including his/her license number and expiration date. The consultant must also initial the protocol on every page that addresses the scope of work and on all drawings related to the remediation work; and

(15) review and approve changes to any protocol by signing or initialing according to paragraph (14) of this subsection.

§295.313.Mold Assessment Company: Licensing Requirements.

(a) Licensing requirements. A person performing mold assessment work on or after January 1, 2005 must be licensed as a mold assessment company if the person employs two or more individuals required to be licensed under §295.311 of this title (relating to Mold Assessment Technician: Licensing Requirements) or §295.312 of this title (relating to Mold Assessment Consultant: Licensing Requirements), except that an individual licensed as a mold assessment consultant and doing business as a sole proprietorship is not required to be separately licensed under this section. A mold assessment company shall designate one or more individuals licensed as mold assessment consultants as its responsible person(s).

(b) Authorization and conditions. As a condition of licensure, a mold assessment company must:

(1) notify the department in writing of any changes in individual licensed mold assessment consultants as responsible persons within 10 days of such occurrences;

(2) maintain commercial general liability insurance, as described in §295.309 of this title (relating to Licensing: Insurance Requirements);

(3) refrain from mold assessment activity during any period without the active employment of at least one individual licensed mold assessment consultant designated as the responsible person for the company;

(4) notify the department in writing of any change related to a person who has an ownership interest of 10% or more (including additions to or deletions from any list of such persons previously supplied to the department and any changes in the names, addresses, or occupations of any persons on such a list) within 10 days of the change; and

(5) refrain from engaging in activity prohibited under §295.307(a) of this title (relating to Conflict of Interest and Disclosure Requirement).

(1) employ at least one licensed mold assessment consultant; and

(2) maintain an office in Texas.

(d) Fees. The fees for a mold assessment company license are:

(1) $1,000 for the license; and

(2) a required Texas Online subscription and convenience fee.

(1) proof of compliance with the insurance requirement specified in §295.309 of this title;

(2) the name, address, and occupation of each person that has an ownership interest of 10% or more in the company; and

(3) the name and license number of each licensed mold assessment consultant designated by the applicant as a responsible person.

(f) Responsibilities. In addition to the requirements as listed in §295.306 of this title (relating to Credentials: General Responsibilities), a licensed mold assessment company shall:

(1) follow the recordkeeping requirements, at both the Texas office and work site locations, as described in §295.326(c) of this title (relating to Recordkeeping);

(2) provide each client with a mold assessment report following an initial (pre-remediation) mold assessment. If the company includes the results of the initial assessment in a mold remediation protocol or a mold management plan, a separate assessment report is not required;

(3) provide each client a mold remediation protocol before remediation begins;

(4) ensure that all employees who will conduct mold assessment activities are provided with, fit tested for, and trained in the correct use of personal protection equipment appropriate for the activities to be performed;

(5) ensure that the training and license of each licensed employee are current, as described in §295.320 of this title (relating to Training: Required Mold Training Courses) and §295.311 or §295.312 of this title, respectively;

(6) utilize the services of a laboratory that is licensed by the department to provide analysis of mold samples;

(7) maintain commercial general liability insurance, as described in §295.309 of this title;

(8) if the company performs post-remediation assessment on a project and ceases to be involved with the project before it achieves clearance, provide a final status report to the client and to the mold remediation contractor or company performing mold remediation work for the client as specified under §295.324(e) of this title (relating to Post-Remediation Assessment and Clearance); and

(9) provide a passed clearance report to the client as specified under §295.324(d) of this title and provide a Certificate of Mold Damage Remediation, with applicable sections completed by a mold assessment consultant, to a mold remediation company or contractor, as specified under §295.327(b) of this title (relating to Photographs; Certificate of Mold Damage Remediation; Duty of Property Owner).

§295.315.Mold Remediation Contractor: Licensing Requirements.

(a) Licensing requirements. Unless exempted under §295.303 of this title (relating to Exceptions and Exemptions), an individual must be licensed as a mold remediation contractor to perform activities listed under subsection (b) of this section. A licensed mold remediation contractor who employs one or more individuals required to be licensed under this section or §295.314 of this title (relating to Mold Remediation Worker: Registration Requirements) must be separately licensed as a mold remediation company under §295.316 of this title (relating to Mold Remediation Company: Licensing Requirements), except that an individual licensed as a mold remediation contractor and doing business as a sole proprietorship is not required to be separately licensed under §295.316 of this title.

(b) Scope. An individual licensed under this section may perform mold remediation and supervise registered mold remediation workers performing mold remediation. In addition, a licensed mold remediation contractor is licensed to provide mold remediation services including:

(1) preparing a mold remediation work plan providing instructions for the remediation efforts to be performed for a mold remediation project; and

(2) conducting and interpreting the results of activities recommended in a work plan developed under paragraph (1) of this subsection, including any of the activities of a registered mold remediation worker under §295.314 of this title.

(1) a bachelor's degree from an accredited college or university with a major in a natural or physical science, engineering, architecture, building construction, or building sciences and at least one year of experience either in an allied field or as a general contractor in building construction;

(3) a high school diploma or General Educational Development (GED) certificate, plus at least five years of experience in an allied field or as a general contractor in building construction; or

(d) Fees. The fees for a mold remediation contractor license are:

(1) $500 for the license; and

(2) a required Texas Online subscription and convenience fee.

(1) if the application is for an initial license:

(A) verifiable evidence that the applicant meets at least one of the qualifications under subsection (c)(1) of this section;

(B) proof of compliance with the insurance requirement specified in §295.309 of this title;

(C) a copy of a certificate of training indicating successful completion within the past twelve months of an initial training course offered by a department-accredited training provider as described in §295.320(e) of this title (relating to Training: Required Mold Training Courses); and

(D) proof of successfully passing the state licensing examination with a score of at least 70% correct; or

(2) if the application is for renewal of a license:

(A) a copy of a certificate of training as described in §295.320(g) of this title, unless the applicant is exempt under §295.305(g)(3) of this title; and

(B) proof of compliance with the insurance requirement specified in §295.309 of this title.

(f) Responsibilities. In addition to the requirements as listed in §295.306 of this title (relating to Credentials: General Responsibilities), the mold remediation contractor shall be responsible for:

(1) supervising mold remediation workers as defined in §295.302(41) of this title (relating to Definitions);

(2) accurately interpreting field notes, drawings, and reports relating to mold assessments;

(3) advising clients about options for mold remediation;

(4) complying with standards for preparing mold remediation work plans, as presented in training course materials or as required by the mold remediation company by whom the contractor is employed;

(5) providing to a client a mold remediation work plan for the project before the mold remediation preparation work begins;

(6) inquiring of the client whether any known or suspected hazardous materials, including lead-based paint and asbestos, are present in the project area;

(7) signing and dating each mold remediation work plan that he/she prepares on the cover page. The cover page shall also include his/her license number and expiration date. He/she must also initial the work plan on every page that addresses the scope of work and on all drawings related to the remediation work;

(8) submitting the required notification to the department, as described in §295.325 of this title (relating to Notifications), unless employed by a licensed mold remediation company;

(9) ensuring that all individuals are provided with, fit tested for, and trained in the correct use of personal protection equipment required under §295.322(c) of this title (relating to Minimum Work Practices and Procedures for Mold Remediation);

(10) if the mold remediation contractor is doing business as a sole proprietorship and is not required to be separately licensed as a mold remediation company under §295.316 of this title:

(A) ensuring that the training, as described in §295.320 of this title (relating to Training: Required Mold Training Courses), and license of each employee who is required to be licensed under this subchapter is current;

(B) ensuring that the training, as described in §295.320 of this title, and registration of each registered employee is current;

(C) ensuring that each unregistered employee who is required to be registered under this subchapter is provided the training required under §295.320(d) of this title before performing any mold remediation work;

(D) complying with all requirements under §295.320(d) of this title if the contractor provides the training; and

(E) ensuring that a previously unregistered employee who is provided training as specified in subparagraph (C) of this paragraph:

(i) has applied to the department for registration before allowing that employee to perform any mold remediation work, except as provided under §295.314(e) of this title; and

(ii) is registered before allowing that employee to perform any mold remediation work more than 30 days after the date of the training, in accordance with §295.314(e) of this title;

(11) complying with recordkeeping responsibilities under §295.326 of this title (relating to Recordkeeping); and

(12) providing to the property owner a completed Certificate of Mold Damage Remediation as specified under §295.327 of this title (relating to Photographs; Certificate of Mold Damage Remediation; Duty of Property Owner).

§295.318.Mold Training Provider: Accreditation.

(a) Accreditation requirement. A person must be accredited as a mold training provider to offer mold training courses that are prerequisites for licensing.

(b) Authorizations and Conditions. The following shall apply to issuance of accreditations under this section.

(1) No person shall advertise or offer as initial or refresher training courses, for fulfillment of requirements for licensing under this subchapter, any courses that the department has not approved under §295.319 of this title (relating to Training: Approval of Training Courses and Instructors). Accredited training providers may offer, without department approval, mold remediation worker training courses and other courses relevant to mold-related activities, including, but not limited to, courses on respirator training and compliance. Accredited training providers shall use only department-approved instructors for mold remediation workers training courses.

(2) Accredited training providers must offer approved courses as described below.

(A) Each initial and refresher course shall address only one licensee and shall not be combined with other areas of licensure. Initial training courses shall not be combined with refresher courses. This prohibition against combined training applies to hands-on training sessions as well as other aspects of the course.

(B) Each course shall be conducted in one language throughout and not combined with the same course taught in another language. A training provider may offer a course in a language other than English if all instructors and guest speakers are fluent in that language and all books, training materials, and course tests are in that language.

(3) Each accredited training provider shall submit schedules for approved training courses to the department at least 14 calendar days prior to the start of any course on the schedule. Requests for exceptions to the 14-day rule shall be submitted in writing to the Department of State Health Services, Environmental and Sanitation Licensing Group along with a written justification describing why the notice could not be submitted earlier. Approval requests for shorter notice must be received by the department 72 hours prior to the start of the course and will be granted in writing if approved. A training provider that cancels a scheduled course must notify the department in writing at least 24 hours prior to the scheduled start time of the course. The department will accept facsimiles of cancellation notices. If the training provider cannot provide written notice of cancellation at least 24 hours in advance, the training provider shall notify the department by phone not later than two hours after the scheduled class start time and provide a written explanation of the short cancellation notice within 24 hours of the phone call.

(4) Training courses must be conducted during scheduled hours as notified in accordance with paragraph (3) of this subsection. Training providers shall not conduct any approved course for more than eight training hours (including hands-on portions) in a calendar day.

(5) A training provider must require instructors and guest speakers to present in person at least 50% of the classroom instruction and all of the hands-on instruction. The training provider may allow an instructor or guest speaker to use training films and videotapes, but audiovisual materials shall not be used as substitutes for the required in-person presentations or the hands-on instruction.

(6) Courses requiring hands-on practical training must be presented in an environment that permits each student to have actual experience performing tasks associated with the mold-related activity.

(7) The maximum number of students in a lecture session shall be 40. Hands-on training sessions shall maintain a student-to-instructor ratio of not more than 15 to one and must be conducted so that the instructor is able to assist and evaluate each student individually. Field trips shall maintain a student-to-instructor ratio of not more than 40 to one.

(8) Approved training courses shall be conducted in facilities acceptable as classrooms and conducive to learning. The facilities must have restrooms available for the students.

(9) Course instructors shall maintain a master attendance record for each course and take attendance at the beginning of each four-hour instruction segment. A student who is absent from more than 10% of the course instruction, including hands-on sessions and field trips, is ineligible to complete the course.

(10) An accredited training provider must verify and keep a written record of any student achieving a minimum score of 70% correct on each course test. The training provider shall have a written policy concerning the administration of tests, including allowing only one re-test per student for each course. The use of the same questions for both the original and re-test is not allowed. Oral tests are not allowed; however, a training provider may read the written test questions and possible answers to a student who must then mark his or her answer on an answer sheet. If a student fails the re-test, the student must repeat the course and pass a new test.

(11) Each training provider shall send at least one course instructor to any meeting held by the department for the purpose of ensuring quality training. The department shall hold no more than two such meetings per year.

(12) An individual instructor shall not train himself/herself to qualify for a license or a registration.

(1) must have a written policy concerning refunds and cancellations in all languages in which training is offered. The refund and cancellation policy must be made available to students prior to payment of fees and shall include the cancellation procedures;

(2) shall employ a mold training manager who:

(A) meets at least one of the following requirements:

(i) at least two years of experience, education, or training in teaching workers or adults;

(ii) a bachelor's or graduate degree in building construction technology, engineering, industrial hygiene, safety, public health, education, or business administration or program management; or

(iii) at least two years of experience in managing an occupational health and safety training program specializing in environmental hazards; and

(B) has demonstrated experience, education, or training in mold assessment or remediation, lead or asbestos abatement, occupational safety and health, or industrial hygiene;

(3) shall provide for each course a qualified principal instructor who meets the requirements under §295.319 of this title; and

(4) must develop and implement a plan to maintain and improve the quality of the training program. This plan shall contain at least the following elements:

(A) procedures for periodic revision of training materials and the course test to reflect innovations in the field; and

(B) procedures for the training manager's annual review of instructor competency.

(d) Fees. The fees for mold training provider accreditation are:

(1) $1,000 for the accreditation; and

(2) a required Texas Online subscription and convenience fee.

(e) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals). An applicant shall include:

(1) for an initial accreditation, at least one complete application for approval of a training course and at least one complete application for approval of an instructor, as described under §295.319 of this title;

(2) for a renewal accreditation, a list of all of the training provider's courses and instructors currently approved by the department; and

(3) a description of the training provider's organization, including the address of its central office, the names and business addresses of its principals, a statement of any affiliation with another mold-related company doing business in Texas, and a listing of the courses to be offered. The organization shall designate a staff member as the mold training manager who meets the qualifications of subsection (c)(2) of this section.

(f) Responsibilities. In addition to the requirements listed in §295.306 of this title (relating to Credentials: General Responsibilities), an accredited mold training provider shall be responsible for:

(1) confirming, before enrolling a student in a refresher training course, that the student has successfully completed a previous training course in the same area of licensure within 24 months;

(2) maintaining the hands-on skills assessment to ensure that it accurately evaluates student performance of the work practices and procedures associated with the course topics contained in §295.320 of this title (relating to Training: Required Mold Training Courses);

(3) maintaining the validity and integrity of the course test to ensure that it accurately evaluates the student's knowledge and retention of the course topics;

(4) furnishing appropriate equipment in good working order and in sufficient quantities for each training session in which equipment is required;

(5) presenting to students all course information and material approved by the department;

(6) at the conclusion of each training course, providing to each student who successfully completes the course and passes the required test:

(A) a course-completion certificate as described in §295.319(c)(8) of this title;

(B) a wallet-size photo-identification card, indicating the course completed, the effective date, and a number identifier for the student;

(C) a current one-inch square passport-quality color photograph of the student's face on a white background taken during the course to be attached by the student to an application for licensing or registration; and

(D) a copy of the application and schedule for the state licensing examination;

(7) submitting to the department, within 10 working days of the completion date of each course:

(A) the names and number identifiers of each student who attended the course, on a form provided by the department;

(B) individual one-inch square passport-quality color photographs of the face of each student on a white background taken during the course; and

(C) a color group photograph taken at the end of the course that identifies which students did and did not pass the course. Digital or scanned images will be accepted. The group color photograph must be no smaller than a standard 3 1/2-inch by 4 1/4-inch print;

(8) documenting that each person who receives a certificate has successfully completed an initial course in accordance with §295.320 of this title and has achieved a passing score on the written test. The training provider must maintain a file for each course that includes the training course name, dates and area of licensure, the names of all instructors and guest speakers who taught the course, a roster of all students in the course, a copy of the course test and each student's name and graded answer sheet, the date and location where the test was administered, the name of the test proctor, the names of students receiving certificates, the certificate numbers, and the expiration date of the training. All information from the training course and test must correspond to the information on each person's course-completion certificate. All records under this section shall be available for inspection by the department immediately upon conclusion of the course and the test; and

(9) complying with all requirements under §295.320(d) of this title if the company provides training to individuals seeking registration as mold remediation workers and maintaining copies of the required training documents at a central location at its Texas office.

(g) Inspections and audits. Training providers shall permit department representatives to attend, evaluate, and monitor any training course, without charge or advance notice, to ensure compliance with this subchapter. The following criteria are grounds for suspending or withdrawing training provider accreditations or instructor approvals under §295.330 of this title (relating to Compliance: Reprimand, Suspension, Revocation, Probation) or for assessing administrative penalties under §295.331 of this title (relating to Compliance: Administrative Penalty):

(1) failure to adhere to the training standards and requirements of this subchapter;

(2) misrepresentation of the extent of approval of a training course or instructor;

(3) falsification of records or submitting false information to the department;

(4) failure to submit required information in a timely manner; or

(5) failure to comply with these regulations in a manner that demonstrates a lack of ability, capacity or fitness to perform training duties and responsibilities.

§295.325.Notifications.

(a) General provision. A mold remediation contractor or company shall notify the department of a mold remediation, as defined in §295.302(28) of this title (relating to Definitions), when mold contamination affects a total surface area of 25 contiguous square feet or more. Notification shall be received by the Department of State Health Services, Environmental Health Notifications Group no less than five working days (not calendar days) prior to the anticipated start date of the mold remediation and shall be submitted by United States Postal Service, commercial delivery service, hand-delivery, electronic mail (e-mail), or facsimile on a form specified by the department and available on its website. The form must be filled out completely and properly. Blanks that do not apply shall be marked "N/A". The "N/A" designation will not be accepted for identification of the work site, building description, building owner, individuals required to be identified on the notification form, start- and stop-dates, or scheduled hours of mold remediation. A signature of the responsible person is required on each notification form. The contractor or company shall retain a confirmation that the department received the notification.

(b) Start-date change to later date. When mold remediation activity is rescheduled to start later than the date or hours contained in the most recent notice, the regional office of the department shall be notified by telephone as soon as possible but prior to the start-date on the most recent notice. A written amended notification is required immediately following the telephone notification and shall be e-mailed, faxed or overnight mailed to the Environmental Health Notifications Group within the Inspection Unit, Environmental and Consumer Safety Section of the department.

(c) Start-date change to earlier date. When mold remediation activities begin on a date earlier than the date contained in the notice, the department shall be provided with written notice of the new start-date at least five working days before the start of work unless the provisions of subsection (e) of this section apply. The licensee shall confirm with the department by phone that the notice is received five working days before the start of work.

(d) Start-date/stop-date (completion date) requirement. In no event shall mold remediation begin or be completed on a date other than the date contained in the written notice except for operations covered under subsection (e) of this section. Amendments to start-date changes must be submitted as required in subsections (b) and (c) of this section. An amendment is required for any stop-dates that change by more than one workday. The contractor or company shall provide schedule changes to the department no less than 24 hours prior to the most recent stop-date or the new stop-date, whichever comes first. Changes less than five days in advance shall be confirmed with the appropriate department regional office by telephone, facsimile, or e-mail and followed up in writing to the department's central office at 1100 West 49th Street, Austin, Texas, 78756.

(e) Provision for emergency. In an emergency, notification to the department shall be made as soon as practicable but not later than the following business day after the license holder identifies the emergency. Initial notification shall be made to the department's central office either immediately by telephone, followed by formal notification on the department's notification form, or immediately by facsimile on the department's notification form. The contractor or company shall retain a confirmation that the notification was received by the department. Emergencies shall be documented. An emergency exists if a delay in mold remediation services in response to a water damage occurrence would increase mold contamination.

(f) Notification fees.

(1) For each initial notification of a mold remediation project, the mold remediation contractor or company shall remit to the department a fee of $100, except that the fee shall be $25 for a remediation project in an owner-occupied residential dwelling unit. Amendments to a notification shall not require a separate fee.

(2) The department shall send an invoice for the required fee to the contractor or company after the department has received the notification. Payment must be remitted in the manner instructed on the invoice no later than 60 working days following the date on the notification invoice. Failure to pay the required fee after an invoice has been sent is a violation, and the department may seek administrative penalties as listed in §295.331 of this title (relating to Compliance: Administrative Penalty).

§295.326.Recordkeeping.

(a) Record retention. Records and documents required by this section shall be retained for the time specified in subsection (b)(2) of this section for remediators and subsection (c)(2) of this section for assessors, subsection (d) of this section for mold analysis laboratories, and subsection (e)(1) of this section for training providers. Such records and documents shall be made available for inspection by the department or any law enforcement agency immediately upon request. Licensees and accredited training providers who cease to do business shall notify the department in writing 30 days prior to such event to advise how they will maintain all records during the minimum three-year retention period. The department, upon receipt of such notification and at its option, may provide instructions for how the records shall be maintained during the required retention period. A licensee or accredited person shall notify the department that it has complied with the department's instructions within 30 days of their receipt or make other arrangements approved by the department. Failure to comply may result in disciplinary action.

(b) Mold remediation companies and contractors. A licensed mold remediation company shall maintain the records listed in paragraphs (1) and (2) of this subsection for each mold remediation project performed by the company and the records listed in paragraph (4) of this subsection for each remediation worker training session provided by the company. A licensed mold remediation contractor not employed by a company shall personally maintain the records listed in paragraphs (1) and (2) of this subsection for each mold remediation project performed by the contractor and the records listed in paragraph (4) of this subsection for each remediation worker training session provided by the mold remediation contractor.

(1) A licensed mold remediation contractor shall maintain the following records and documents on-site at a project for its duration:

(A) a current copy of the mold remediation work plan and all mold remediation protocols used in the preparation of the work plan; and

(B) a listing of the names and license/registration numbers of all individuals working on the remediation project.

(2) A licensed mold remediation company shall maintain the following records and documents at a central location at its Texas office for three years following the stop date of each project that the company performs. A licensed mold remediation contractor not employed by a company shall maintain the following records and documents at a central location at his or her Texas office for three years following the stop date of each project that the contractor performs:

(A) a copy of the mold remediation work plan specified under paragraph (1)(A) of this subsection;

(B) photographs of the scene of the mold remediation taken before and after the remediation;

(C) the written contract between the mold remediation company or remediation contractor and the client, and any written contracts related to the mold remediation project between the company or contractor and any other party;

(D) all invoices issued regarding the mold remediation; and

(E) copies of all certificates of mold remediation issued by the company or contractor.

(3) A remediation contractor or company may maintain the records required under paragraphs (1) and (2) of this subsection in an electronic format rather than as paper documents. A remediation contractor or company who maintains the required records in an electronic format must provide paper copies of records to a department inspector during an inspection if requested to do so by the inspector.

(4) A licensed mold remediation contractor or remediation company who trains employees to meet the requirements under §295.320(d) of this title (relating to Training: Required Mold Training Courses) shall maintain copies of the required training documents at a central location at its Texas office.

(1) A licensed mold assessment company shall maintain the following records and documents at a central location at its Texas office for the time period required under paragraph (2) of this subsection for each project that the company performs. A licensed mold assessment consultant not employed by a company shall maintain the following records and documents at a central location at his or her Texas office for the time period required under paragraph (2) of this subsection for each project that the contractor performs:

(A) the name and mold credential number of each of its employees who worked on the project and a description of each employee's involvement with the project;

(B) the written contract between the mold assessment company or consultant and the client;

(D) copies of all laboratory reports and sample analyses;

(E) copies of all photographs required under §295.324 of this title (relating to Post-Remediation Assessment and Clearance);

(F) copies of all mold remediation protocols and changes prepared as a result of mold assessment activities; and

(G) copies of all passed clearance reports issued by the company or consultant.

(2) For each project, a licensed mold assessment company or consultant shall maintain all the records listed in paragraph (1) of this subsection until:

(A) the company or consultant issues a mold assessment report, management plan, or remediation protocol to a client, if the company or consultant performs only the initial assessment for the project;

(B) the company or consultant issues the final status report to the client, if a final status report is issued; or

(C) the company or consultant provides the signed Certificate of Mold Damage Remediation to a mold remediation contractor or company, if a Certificate of Mold Damage Remediation is provided.

(d) Mold analysis laboratories. A licensed mold analysis laboratory shall maintain copies of the results, including the sample identification number, of all analyses performed as part of a mold assessment or mold remediation for three years from the date of the sample analysis.

(e) Training providers. Accredited training providers shall comply with the following record-keeping requirements. The training provider shall maintain the records in a manner that allows verification of the required information by the department.

(1) Training records. The training provider shall maintain records for at least three years from the date of the class in accordance with §295.318(f)(8) and (9) of this title (relating to Mold Training Provider: Accreditation).

(2) A training provider may maintain the records required under paragraph (1) of this subsection in an electronic format rather than as paper documents. A training provider who maintains the required records in an electronic format must provide paper copies of records to a department inspector during an inspection if requested to do so by the inspector.

§295.327.Photographs; Certificate of Mold Damage Remediation; Duty of Property Owner.

(a) Not later than one week after completion of a mold remediation project, the licensed mold remediation contractor or company shall provide the property owner with copies of required photographs of the scene of the mold remediation taken before and after the remediation.

(b) Not later than the 10th day after the project stop date, the licensed mold remediation contractor or company shall provide a Certificate of Mold Damage Remediation to the property owner on a form adopted by the Texas Commissioner of Insurance. The Certificate of Mold Damage Remediation must include the following:

(1) a statement by a licensed mold assessment consultant (not the licensed mold remediator) that based on visual, procedural, and analytical evaluation, the mold contamination identified for the project has been remediated as outlined in the mold remediation protocol; and

(2) a statement on the certificate that the underlying cause of the mold has been remediated, if the licensed mold assessment consultant determines that the underlying cause of the mold has been remediated so that it is reasonably certain that the mold will not return from that same cause.

(c) Copies of the completed certificate shall be retained in the business files of the assessment consultant/company and the remediation contractor/company.

(d) If a property owner sells the property, the property owner shall provide to the buyer a copy of each Certificate of Mold Damage Remediation issued for the property under this section during the five years preceding the date the property owner sells the property.

§295.338.Civil Liability Exemption for Certain Property Owners or Governmental Entities.

(a) A property owner is not liable for damages related to mold remediation on a property if a Certificate of Mold Damage Remediation has been issued under §295.327 of this title (relating to Photographs; Certificate of Mold Damage Remediation; Duty of Property Owner) for that property and the damages accrued on or before the date of the issuance of the Certificate of Mold Damage Remediation.

(b) A person is not liable in a civil lawsuit for damages related to a decision to allow occupancy of a property after mold remediation has been performed on the property if a Certificate of Mold Damage Remediation has been issued under §295.327 of this title for the property, the property is owned or occupied by a governmental entity, including a school, and the decision was made by the owner, the occupier, or any person authorized by the owner or occupier to make the decision.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701695

Cathy Campbell

General Counsel

Department of State Health Services

Effective date: May 20, 2007

Proposal publication date: December 8, 2006

For further information, please call: (512) 458-7111 x6972