TITLE examining-boards

Part IX. Texas State Board of Medical Examiners

Chapter 163. Licensure

22 TAC §163.6

The Texas State Board of Medical Examiners proposes an amendment to §163.6, concerning Procedural Rules for Licensure Applicants. The amendment will allow the board to consider licensing a physician whose license from another state has been cancelled, suspended, or restricted for reasons other than disciplinary.

Bruce A. Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the section as proposed.

Dr. Levy also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be allowing the board to consider licensing a physician whose license from another state has been cancelled, suspended, or restricted for reasons other than disciplinary. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, §3.03(c) is affected by the proposed rule.

§163.6.Procedural Rules for Licensure Applicants.

(a)-(b)

(No change.)

(c)

Applicants for licensure by endorsement:

(1)

are required to complete an oath swearing that:

(A)

the license certificate under which the applicant has most recently practiced medicine in the state or Canadian province from which the applicant is transferring to this state or in the uniformed service in which the applicant served is in full force and not restricted for cause , canceled for cause , suspended for cause , or revoked;

(B)-(D)

(No change.)

(2)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 21, 1999.

TRD-9903657

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: August 1, 1999

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

Chapter 166. Physician Registration

22 TAC §166.1

The Texas State Board of Medical Examiners proposes an amendment to §166.1, concerning Physician Registration. The amendment adds a new subsection (d) which concerns the time frame for notifying the Board of a physician's change of address.

Bruce A. Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the section as proposed.

Dr. Levy also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be timely notification of a physician's change of address. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(c) is affected by the proposed rule.

§166.1.Physician Registration.

(a)-(c)

(No change.)

(d)

Within 60 days of a physician's change of mailing or practice address from the addresses on file with the Board, a physician shall notify in writing the Board Licensure Division of such change.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 21, 1999.

TRD-9903659

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: August 1, 1999

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

Chapter 167. Reinstatement

22 TAC §§167.4-167.6

The Texas State Board of Medical Examiners proposes new §§167.4-167.6, concerning Best Interests of Physician, Best Interests of the Public and Collateral Attack Prohibited. The new sections will outline the criteria to be considered when making a determination of what is in the best interest of the physician and the public relating to the reinstatement of a physician's license.

The proposed review of Chapter 167 (concerning Reinstatement) is contemporaneously published elsewhere in this issue of the Texas Register . The review is in accordance with the Appropriations Act of 1997, HB 1, Article IX, Section 167.

Bruce A. Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, has determined that for the first five-year period the new sections are in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed.

Dr. Levy also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be careful consideration of the public and physician's best interest. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rules as proposed.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The new sections are proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, §4.10 is affected by the proposed rules.

§167.4.Best Interests of Physician.

Pursuant to Texas Revised Civil Statutes, Article 4495b, §4.10, a physician may be reinstated to the practice of medicine only if the physician demonstrates that the reinstatement is in the physician's best interests. Best interests of the physician may include, but not be limited to, an assessment by the Board as to whether the physician demonstrates:

(1)

a recognition and acceptance of any competency, technical, educational, training or ethical limitations as found in the Order leading to revocation, cancellation or suspension of a license;

(2)

recognition and acceptance of the authority of the Board to license, discipline and regulate the physician for the protection of public health and welfare; and

(3)

that risk of further disciplinary proceedings for the revocation, cancellation or suspension of the license of the physician will be minimal or minimized if the physician is returned to the practice of medicine.

§167.5.Best Interests of the Public.

Pursuant to Texas Revised Civil Statutes, Article 4495b, §4.10, a physician may be reinstated to the practice of medicine only if the physician demonstrates that the reinstatement is in the best interests of the public. Bests interests of the public may include, but not be limited to, an assessment by the Board as to whether the physician demonstrates:

(1)

remediation of any competency, technical, educational, training or ethical limitations as found in the Order leading to revocation, cancellation or suspension of a license;

(2)

that risk of further disciplinary proceedings for the revocation, cancellation or suspension of the license will be minimal or minimized if the physician is returned to the practice of medicine and the public will adequately be protected, whether by probationary Order or other terms and conditions as agreed to by the physician or authorized by Texas Revised Civil Statutes, Article 4495b, §4.11 and §4.12;

(3)

that a real and specific need for the physician's expertise, specialty or practice exists in the community where the physician plans to practice such that the need may not be met by other physicians;

(4)

that an adequate practice plan will be in place to reduce or eliminate the risk of further disciplinary proceedings by the Board; and

(5)

continued medical competency such that the physician is able to provide the same standard of medical care as any applicant for a license under Chapter 163 of this title (relating to Licensure). Further, the Board may require an applicant for reinstatement to meet the qualifications set forth in Chapter 163 of this title (relating to Licensure).

§167.6.Collateral Attack Prohibited.

In any contested case proceeding regarding a reinstatement application, the Order revoking, canceling or suspending a license shall not be subject to collateral attack as to its findings of fact or conclusions of law, provided, however, that the Order may be admissible and relevant for purposes of establishing the basis for the original action and subsequent efforts after the Order by the physician to demonstrate reinstatement of the license is in the best interests of the public and the applicant physician.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 21, 1999.

TRD-9903658

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: August 1, 1999

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

Chapter 173. Applications

22 TAC §173.1

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas State Board of Medical Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas State Board of Medical Examiners proposes the repeal of §173.1, concerning Applications. The repeal is necessary because chapters 173 and 175 are being combined to reorganize and update applications and fees. New Chapter 175 is proposed simultaneously in this issue of the Texas Register .

The proposed review of Chapters 173 and 175 (concerning Applications and Schedule of Fees and Penalties) was previously published in the September 18, 1998, issue of the issue of the Texas Register (23 TexReg 9583). The review of these Chapters was reproposed in the March 5, 1999, issue of the Texas Register (24 TexReg 1643). The review is in accordance with the Appropriations Act of 1997, HB 1, Article IX, Section 167.

Bruce A. Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the section as proposed.

Dr. Levy also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be updated rules. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The repeal is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a) is affected by the proposed repeal .

§173.1.Applications.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 21, 1999.

TRD-9903660

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: August 1, 1999

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

Chapter 175. Schedule of Fees and Penalties

The Texas State Board of Medical Examiners proposes the repeal of §175.1-175.4, concerning Schedule of Fees and Penalties and new §§175.1-175.5, concerning Fees, Penalties, and Applications. Chapters 173 and 175 are being combined to reorganize and update applications and fees. The repeal of Chapter 173 is proposed simultaneously in the issue of the Texas Register

The proposed review of Chapters 173 and 175 (concerning Applications and Schedule of Fees and Penalties) was previously published in the September 18, 1998, issue of the issue of the Texas Register (23 TexReg 9583). The review of these Chapters was reproposed in the March 5, 1999, issue of the Texas Register (24 TexReg 1643). The review is in accordance with the Appropriations Act of 1997, HB 1, Article IX, Section 167.

Bruce A. Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, has determined that for the first five-year period the repeal and new sections are in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed.

Dr. Levy also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be reorganization of the chapters and updated information. There will be an estimated increase to state revenue of $90,920. The following is a breakdown: $58,700 for new permits; $24,720 for renewals; and $7,500 for approval of fellowship programs. There is no impact on small businesses. There is an increase in fees to those required to comply of $15-$25 annually. In addition there is a fee for approval of fellowship programs of $150, which is a new fee.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

22 TAC §§175.1-175.4

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas State Board of Medical Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(k) is affected by the proposed repeals.

§175.1.Fees.

§175.2.Penalties.

§175.3.Payment of Fees or Penalties.

§175.4.Partial Refund.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 21, 1999.

TRD-9903661

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: August 1, 1999

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

Chapter 175. Fees Penalties and Applications

22 TAC §§175.1-175.5

The new sections are proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(k) is affected by the proposed new sections.

§175.1.Fees.

The board shall charge the following fees.

(1)

Physicians:

(A)

processing an application for complete or partial licensure examination (includes one USMLE Step 3 or COMLEX Level 3 and jurisprudence examination fee) -$800;

(B)

processing an application for licensure by endorsement (includes one jurisprudence examination fee) - $800;

(C)

examination fees (required and payable each time applicant is scheduled for examination):

(i)

USMLE Step 3 - $500;

(ii)

COMLEX Level 3 - $500;

(iii)

Jurisprudence - $30;

(D)

processing an application for a special purpose license for practice of medicine across state lines (includes one jurisprudence examination fee) - $800;

(E)

temporary license:

(i)

regular - $50;

(ii)

distinguished professor - $50;

(iii)

state health agency - $50;

(iv)

section 3.0305 - $50;

(v)

rural/underserved areas - $50;

(vi)

continuing medical education - $50;

(F)

annual renewal - $310.

(2)

Physicians in Training:

(A)

institutional permit (began training program prior to 6-1-2000) - $50;

(B)

renewal of institutional permit (began training program prior to 6-1-2000) - $35;

(C)

basic postgraduate resident permit - $75;

(D)

advanced postgraduate resident permit - $75;

(E)

temporary postgraduate resident permit - $50;

(F)

renewal of basic postgraduate resident permit - $50;

(G)

renewal of advanced postgraduate resident permit - $50;

(H)

faculty temporary permit - $110;

(I)

visiting professor permit - $110;

(J)

evaluation or re-evaluation of postgraduate training program -$150.

(3)

Physician Assistants:

(A)

processing application for licensure as a physician assistant - $200;

(B)

temporary license - $50;

(C)

annual renewal - $150.

(4)

Acupuncturists/Acudetox Specialists:

(A)

processing an application for license as an acupuncturist - $300;

(B)

temporary license for an acupuncturist - $50;

(C)

annual renewal for an acupuncturist - $250;

(D)

acupuncturist distinguished professor - $50;

(E)

processing an application for acudetox specialist - $50;

(F)

annual renewal for acudetox specialist - $25;

(G)

review of continuing acupuncture education courses - $50;

(H)

review of continuing acudetox acupuncture education courses - $50.

(5)

Non-Certified Radiologic Technicians:

(A)

processing an application - $50;

(B)

annual renewal - $50.

(6)

Certification as a Non-Profit Health Organization:

(A)

processing an application for initial certification - $2,500;

(B)

processing an application for biennial recertification - $500.

(7)

Miscellaneous Fees:

(A)

duplicate license - $45.

(B)

endorsement - $40.

(C)

reinstatement after cancellation for cause - $350.

§175.2.Penalties.

The board shall charge the following penalties:

(1)

Physicians:

(A)

renewal of physician's license expired for 31-90 days - $55;

(B)

renewal of physician's license expired for longer than 90 days but less than one year - $110.

(2)

Physician Assistants:

(A)

renewal of physician assistant's license expired for 90 days or less - $50;

(B)

renewal of physician assistant's license expired for longer than 90 days but less than one year - $100.

(3)

Acupuncturists/Acudetox Specialists:

(A)

renewal of acupuncturist's license expired for 90 days or less - $50;

(B)

renewal of acupuncturist's license expired for longer than 90 days but less than one year - $100;

(C)

renewal of acudetox specialist certification expired for less than one year - $25.

(4)

Non-Certified Radiologic Technicians. Renewal of non-certified radiologic technician's registration expired for 1-90 days - $25.

§175.3.Payment of Fees or Penalties.

All licensure fees or penalties must be submitted in the form of a money order or cashier's check payable on or through a United States bank. Fees and penalties cannot be refunded. If a single payment is made for more than one individual permit, it must be made for the same class of permit and a detailed listing, on a form prescribed by the board, must be included with each payment.

§175.4.Partial Refund.

Fees for processing an application for complete or partial licensure examination may be subject to a partial refund equal to the cost of the examination. The applicant must request a refund before April 1, because the applicant has been accepted in an out-of-state training program starting in June or July as a result of the National Matching Program and elects to not take the licensure examination in Texas.

§175.5.Applications.

(a)

All information required on applications used by this board will conform to the Medical Practice Act and rules promulgated by this board. The board hereby adopts by reference the following forms:

(1)

Physicians:

(A)

application for licensure by examination;

(B)

application for licensure by endorsement;

(C)

application for a special purpose license for practice of medicine across state lines;

(D)

application for temporary license;

(E)

application for annual renewal of physician's permit.

(2)

Physicians in Training:

(A)

application for institutional permit (physician began program prior to 5-31-2000);

(B)

application for renewal of institutional permit (physician began program prior to 5-31-2000);

(C)

application for basic postgraduate resident permit;

(D)

application for advanced postgraduate resident permit;

(E)

application for temporary postgraduate resident permit;

(F)

application for renewal of basic postgraduate resident permit;

(G)

application for renewal of advanced postgraduate resident permit;

(H)

application for faculty temporary permit;

(I)

application for visiting professor permit;

(J)

application for National Health Service Corps Permit.

(3)

Physician Assistants:

(A)

licensure application;

(B)

application for temporary license;

(C)

notice of intent to supervise a physician assistant;

(D)

notice of intent to practice as a physician assistant;

(E)

application for annual renewal of license.

(4)

Acupuncturists/Acudetox Specialists:

(A)

licensure application for acupuncturist;

(B)

application for acupuncturist temporary license;

(C)

application for acupuncture distinguished professor temporary license;

(D)

application for annual renewal of acupuncturist license;

(E)

application for acudetox specialist certification;

(F)

application for annual renewal of acudetox specialist certification;

(G)

application for approval of continuing acupuncture education courses;

(H)

application for approval of continuing acudetox acupuncture education courses.

(5)

Non-Certified Radiologic Technicians:

(A)

application for non-certified radiologic technician permit;

(B)

application for annual renewal of non-certified radiologic technician.

(6)

Certification as a Non-Profit Health Organization:

(A)

application for initial certification;

(B)

application for biennial recertification.

(7)

Miscellaneous Applications:

(A)

application for a duplicate license;

(B)

application for reinstatement of medical license for cause;

(C)

physician designation of prescriptive delegation.

(b)

These forms may be examined and copies may be obtained at the offices of the Texas State Board of Medical Examiners, 333 Guadalupe, Tower 3, Suite 610, Austin, Texas.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 21, 1999.

TRD-9903662

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: August 1, 1999

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

Chapter 179. Investigations Files

22 TAC §179.2

The Texas State Board of Medical Examiners proposes an amendment to §179.2, concerning Request for Information and Records from Physicians. A new subsection (f) is added, which concerns timely responses to written requests for information.

The proposed review of Chapter 179 (§§179.1-179.6, concerning Investigation Files) is contemporaneously published elsewhere in this issue of the Texas Register . The review is in accordance with the Appropriations Act of 1997, House Bill 1, Article IX, §167.

Bruce A. Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the section as proposed.

Dr. Levy also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be timely responses to written requests for information. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas, 78768-2018. A public hearing will be held at a later date.

The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09 and §4.02 are affected by the proposed rule.

§179.2.Request for Information and Records from Physicians.

(a)-(e)

(No change.)

(f)

In addition to the requirements of responding or reporting to the Board under this section, a physician or license holder of the Board shall respond in writing to all written Board requests for information within 30 days of receipt of such request. Failure to timely respond may be grounds for disciplinary action by the Board.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 21, 1999.

TRD-9903663

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: August 1, 1999

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

Chapter 183. Acupuncture

22 TAC §183.7, §183.13

The Texas State Board of Medical Examiners proposes amendments to §183.7 and §183.13, concerning Denial of License; Discipline of Licensee and Patient Records. The amendments concern the time frame for the requirement of physician referral; the maximum number of treatments performed before referral to a physician; and referrals from chiropractors.

Bruce A. Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed.

Dr. Levy also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be updated requirements regarding referrals. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rules as proposed.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas, 78768-2018. A public hearing will be held at a later date.

The amendments are proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, Subchapter F is affected by the proposed rules.

§183.7.Denial of License; Discipline of Licensee.

(a)-(d)

(No change.)

(e)

Scope of Practice.

(1)

Except as provided by paragraph (2) of this subsection, a license to practice acupuncture shall be denied or, after notice and hearing, revoked if the holder of a license has performed acupuncture on a person who was not evaluated by a physician or dentist, as appropriate, for the condition being treated within 12 months before the date acupuncture was performed.

(2)

The holder of a license may perform acupuncture on a person who was referred by a doctor licensed to practice chiropractic by the Texas Board of Chiropractic Examiners if the licensee commences the treatment within 30 days of the date of the referral. The licensee shall refer the person to a physician after performing acupuncture 30 times or for 120 days, whichever occurs first, if no substantial improvement occurs in the person's condition for which the referral was made.

(3)

Notwithstanding paragraphs (1) and (2) of this subsection, an acupuncturist holding a current and valid license may without a referral from a physician, dentist, or chiropractor perform acupuncture on a person for smoking addiction, weight loss, or, as established by the medical board with advice from the acupuncture board by rule, substance abuse.

§183.13.Patient Records.

(a)

Acupuncturists licensed under the Act shall keep and maintain adequate records of all patient visits or consultations which shall, at a minimum, include:

(1)-(7)

(No change.)

(8)

a written record regarding whether or not a patient was evaluated by a physician or dentist, as appropriate, for the condition being treated within 12 [ six ] months before the date acupuncture was performed as required by §183.7(e) of this title (relating to Denial of License; Discipline of Licensee) [ the Act, §6.11(b) ];

(9)

a written record regarding whether or not a patient was referred to a physician after the acupuncturist performed acupuncture 30 [ 20 ] times or for 120 [ 30 ] days, whichever occurs first, as required by §183.7(e) of this title [ the Act, §6.11(c), ] in regard to treatment of patients upon referral by a doctor licensed to practice chiropractic by the Texas Board of Chiropractic Examiners;

(10)

in the case of referrals to the acupuncturist of a patient by a doctor licensed to practice chiropractic by the Texas Board of Chiropractic Examiners, the acupuncturist shall record the date of the referral and the most recent date of chiropractic treatment prior to acupuncture treatment; and,

(11)

reasonable documentation that the evaluation required by §183.7(e) of this title [ the Act, §6.11(b), ] was performed or, in the event that the licensee is unable to determine that the evaluation took place, a written statement signed by the patient stating that the patient has been evaluated by a physician within the required time frame on a copy of the following form:

Figure: 22 TAC 183.13(a)(11)

(b)-(g)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 21, 1999.

TRD-9903664

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: August 1, 1999

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

Chapter 187. Procedure

Subchapter D. Posthearing

22 TAC §187.39

The Texas State Board of Medical Examiners proposes an amendment to §187.39, concerning Administrative Penalties. The amendment will increase the minimum administrative penalty for failure to timely obtain and report continuing medical education (CME) as required by Board rule.

Bruce A. Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendment is in effect the fiscal impact to physicians required to comply with the amendment will be an increase from $100 to $500 minimum. The increased revenue to the state is estimated at $4,000.

Dr. Levy also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be enforcement of continuing medical education. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas, 78768-2018. A public hearing will be held at a later date.

The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, §4.125 is affected by the proposed rule.

§187.39.Administrative Penalties.

(a)-(e)

(No change.)

(f)

Pursuant to the Medical Practice Act, §4.125 and §4.02(h), the board staff, with the approval of the Disciplinary Process Review Committee, may submit a proposed agreed order to a person licensed or regulated under the Medical Practice Act to resolve allegations of failure to release medical records as required by the Medical Practice Act, §5.08, or board rule, overcharging or overtreating as prohibited by the Medical Practice Act, §3.08(4)(G), the corporate practice of medicine as prohibited by the Medical Practice Act, §3.08(15), failure to comply with the complaint procedure notification requirements of the Medical Practice Act, §2.09(s)(2), and board rules, failure to timely obtain and report continuing Medical Education (CME) hours required by board rule, or failure to timely comply with the provisions of a board order, so long as the person who is the subject of the allegations has not been previously disciplined by the board except in the case of an administrative penalty for untimely compliance with a board order, and so long as the administrative penalty is consistent with the following guidelines.

(1)-(4)

(No change.)

(5)

The failure to timely obtain and report Continuing Medical Education (CME) required by board rule shall be grounds for imposition of an administrative penalty of no less than $500 [ $100 ] and no more than $5,000 for each separate violation.

(6)

(No change.)

(g)-(l)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 21, 1999.

TRD-9903665

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: August 1, 1999

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

Part XXIII. Texas Real Estate Commission

Chapter 535. Provisions of the Real Estate License Act

Subchapter F. Education, Experience, Educational Programs, Time Periods and Type of License

22 TAC §§535.61-535.66

The Texas Real Estate Commission (TREC) proposes new §535.61, concerning examinations, §535.62, concerning acceptable courses of study, §535.63, concerning education and experience requirements for a license, §535.64, concerning accreditation of schools and approval of courses and instructors, §535.65, concerning changes in ownership or operation of school; presentation of courses, advertising and records, and §535.66, concerning payment of annual fee, audits, investigations and enforcement actions. These new sections would replace current sections addressing the same subjects and adopt by reference a series of revised forms relating to instructors and accredited schools. The new sections are proposed in connection with TREC's pending review of Chapter 535 of the Texas Administrative Code and are intended to reorganize the sections by related topic, shortening the sections whenever possible and making them easier for the public to use. With regard to education required for a real estate license, the proposed new sections also are intended to enhance the quality of the education required of prospective licensees while removing unnecessary restrictions on education providers. The forms used by instructors and schools would be revised to shorten the forms and eliminate requests for unnecessary information. The bond form would be revised to clarify that TREC may make claims on the bond on behalf of the students attending the school.

New §535.61 addresses the confidentiality of the contents of TREC's licensing exams and provides grounds for action against licensees or applicants for obtaining or attempting to obtain examination questions and answers for the purpose of using the information to pass an examination or providing the information to another person who is either an applicant or a potential applicant. Because TREC examinations are administered by a testing service under contract with TREC, the new section would require examinations to be conducted in accordance with the contract. The new section also specifies identification requirements for examinees, restrictions on the use of calculators and waiver of the examination for prior licensees. The new section would require applicants with a disability to contact the testing service to arrange for desired accommodation.

New §535.62 specifies the requirements for TREC to accept courses of study to satisfy the educational requirements for a real estate license. Courses may be either core real estate courses, the content of which are set by Texas Civil Statutes, Article 6573a, §7(a),or by TREC rule, or real estate related courses which TREC has determined to be acceptable. If content requirements are satisfied, courses would be acceptable if offered by a wide range of providers, including schools accredited by TREC, accredited colleges or universities, or professional trade associations. The new section also provides a means of measuring the number of classroom hours of credit awarded by a provider using semester or quarter hours or continuing education units. For acceptance of a core real estate course , the new section would require the daily course presentation not to exceed eight hours, and the student must either have been in the classroom for the hours of credit granted by the provider or completed makeup in accordance with the section. The new section also provides specific requirements, including a final examination, for any provider's core course offered by correspondence or an alternative delivery system such as a computer. Other restrictions on the acceptance of a core course addressed in the new section concern an applicant's submission of substantially similar courses, courses primarily concerning techniques or procedures of a particular brokerage or organization, or courses for which credit is based on life experience or an examination.

New §535.63 concerns experience and education requirements for a real estate license. The new section would combine current provisions relating to broker and salesperson license applications and readopt an exemption for applicants licensed within a seven year period prior to filing the application. The new section also would continue the requirement that an applicant for a broker license have completed at least 180 classroom hours of courses whose titles or course descriptions reflect a real estate discipline such as the core real estate courses listed in the Act or approved by TREC.

New §535.64 concerns the accreditation of real estate schools and approval of courses and instructors. The new section would adopt by reference revised application forms, a school surety bond form, and guidelines for the development of an instructor's manual for a course. The forms have generally been shortened by the elimination of unnecessary questions. Schools accredited prior to the effective date of the section would be required to apply for accreditation prior to January 1, 2001, when prior accreditations would expire. Instructors approved prior to the effective date of the section also would be required to apply for approval to teach at an accredited school after January 1, 2001. New accreditations and approvals would be for five-year periods. The new section establishes standards and procedural guidelines for the accreditation and approval processes for schools, courses and instructors.

New §535.65 addresses operation of a school after it has been accredited. Material changes in operation, including a change of ownership or management, would require prior approval by the commission, and , in the case of a change in ownership, information from the new owners corresponding to that submitted with an original application for accreditation. The new section also specifies requirements for the school facilities. With the exception of classes held in facilities to which a government entity may limit access, classes must be open to the public, whether held in the school facility or in a location such as a broker's office. Schools would be responsible for each course, and the new section would provide specific guidelines for the use of approved instructors or limited use of guest speakers, the number of questions, passing scores and procedures for required course examinations, the mandatory content of pre-enrollment agreements, the school's obligation to provide students with course materials, presentation of courses, course credit and records, acceptable make-up of missed classes, and prohibited advertising practices.

New §535.66 addresses the school's payment of an annual fee based on the anniversary date of the school's accreditation. The new section also provides guidelines for audits of the school by commission employees, complaints, investigations and hearings. Grounds for disciplinary action against schools and instructors are detailed, with specific indicators to show when a school's financial condition is insufficient for continuing operation, such as nonpayment of three or more liabilities when due.

Don Dudley, director of licensing and education, has determined that for the first five-year period the sections are in effect there will be fiscal implications for the state as a result of enforcing or administering the sections. If currently accredited schools are required to reapply for accreditation, and the current application fee of $400 is collected from each school, the state would receive estimated additional revenues of $12,000 in FY 2000 and every five years thereafter. No fiscal implications are involved for units of local government. There is no anticipated impact on local or state employment as a result of implementing the sections.

Mr. Dudley also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be greater ease in reading and following TREC rules and an enhancement of the educational process for potential licensees. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections, other than the filing fee for accreditation of a school, currently set at $400.

Comments on the proposal may be submitted to Mark A. Moseley, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The new sections are proposed under Texas Civil Statutes, Article 6573a, §5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties.

The statute which is affected by this proposal is Texas Civil Statutes, Article 6573a.

§535.61.Examinations.

(a)

The contents of examinations administered by the commission or by a testing service under contract with the commission are confidential. The following conduct with respect to licensing examinations is prohibited and is grounds to impose disciplinary action against any licensee of the commission or any education provider or instructor approved by the commission, and shall further be grounds for disapproval of an application for any license, accreditation, or approval issued by the commission:

(1)

obtaining or attempting to obtain specific questions or answers from an applicant, a commission employee or any person hired by or associated with the testing service, for the purpose of using the information to pass an examination or for the purpose of providing the questions or answers to another person who is either an applicant or a potential applicant;

(2)

removing or attempting to remove questions or answers from an examination site; or

(3)

providing or attempting to provide examination questions or answers to another person, knowing the person is an applicant or prospective applicant, or that the person intends to provide the questions or answers to an applicant or potential applicant.

(b)

Examinations required for any license issued by the commission will be conducted by the testing service with which the commission has contracted for the administration of examinations. The testing service shall schedule and conduct the examinations in the manner required by the contract between the commission and the testing service. To pass the examination, an applicant must attain a passing score in each section of the examination.

(c)

An applicant will not be admitted to the testing service's examination site unless the applicant provides a government issued photo-bearing identification card. The testing service may refuse to admit an applicant who arrives after the time the examination is scheduled to begin or whose conduct or demeanor would be disruptive to other persons taking examinations at the site. The testing service may confiscate examination materials, dismiss the applicant, and fail the applicant for violating or attempting to violate the confidentiality of the contents of an examination.

(d)

Applicants may use slide rules or silent, battery-operated, electronic, pocket sized calculators which are nonprogrammable. If a calculator has printout capability, the testing service must approve use of such calculator prior to the examination. Applicants may not use calculators with alphabetic keyboards.

(e)

The testing service administering the examinations is required to provide reasonable accommodations for any applicant with a verifiable disability. Applicants must contact the testing service to arrange for a special examination. The testing service shall determine the method of examination, whether oral or written, based on the particular circumstances of each case.

(f)

The commission shall waive the examination of an applicant for a broker license who has been licensed as a broker in this state no more than two years prior to the filing of the application. The commission shall waive the examination of an applicant for a salesperson license who has been licensed in this state as a broker or salesperson no more than two years prior to the filing of the application.

§535.62.Acceptable Courses of Study.

(a)

Acceptable core real estate courses are those courses prescribed by Texas Civil Statutes, Article 6573(a) (the Act), §7(a) and by this section. Acceptable real estate related courses are those courses which have been determined to be acceptable by the commission. The commission will periodically publish lists of acceptable real estate related courses.

(b)

The commission may require an applicant to furnish materials such as course outlines, syllabi and course descriptions in support of credit instruments. The commission may require official transcripts to verify course work. Provided all the requirements of this section are satisfied, the commission shall accept core real estate courses or real estate related courses submitted by an applicant for a real estate broker or real estate salesperson license if the course was offered by any of the following providers:

(1)

a school accredited by the commission or the real estate regulatory agency of another state;

(2)

a college or university accredited by a regional accrediting association, such as the Commission on Colleges of the Southern Association of Colleges and Schools, or its equivalent, or by a recognized national or international accrediting body;

(3)

a post-secondary educational institution established by any state;

(4)

the United States Armed Forces Institute or other service-related school; or

(5)

a professional trade association.

(c)

The commission shall measure classroom hour credits using the following equivalents:

(1)

One semester hour: 15 hours.

(2)

One quarter hour: 10 hours.

(3)

One continuing education unit: 10 hours.

(d)

A core real estate course also must meet the following requirements to be accepted.

(1)

The course contained the content required by Texas Civil Statutes, Article 6573a, (the Act), §7, or this section.

(2)

The daily course presentation did not exceed eight hours.

(3)

With the exception of courses conducted by correspondence or by an alternative delivery method such as by computer, the student was present in the classroom for the hours of credit granted by the course provider, or completed makeup in accordance with the requirements of the provider, or by applicable commission rule.

(4)

For a classroom course, successful completion of a final examination or other form of final evaluation was a requirement for receiving credit from the provider.

(5)

For a correspondence course, successful completion of a written final examination was a requirement for receiving credit from the provider, and the examination was administered under controlled conditions to positively identified students.

(6)

For a course offered by an alternative delivery method, the course met the requirements of §535.73(r) of this title (relating to Mandatory Continuing Education: Approval of Providers, Courses and Instructors).

(7)

The student must not have completed more than one course with substantially the same course content within a three year period.

(8)

The course did not primarily concern techniques or procedures utilized by a particular brokerage or organization.

(e)

Course credits awarded by an accredited college or university for life experience or by examination are acceptable only for real estate related courses.

(f)

In addition to the courses of study specified in the Act, §7(a), the following shall be considered core real estate courses.

(1)

Promulgated Contract Forms (or equivalent) shall include but not be limited to unauthorized practice of law, broker-lawyer committee, current promulgated forms, commission rules governing use of forms and case studies involving use of forms.

(2)

Residential Inspection for Real Estate Agents (or equivalent) shall include but not be limited to repair-related contract forms and addenda, inspector and client agreement, inspection standards of practice and standard inspection report form, tools and procedures, electro mechanical systems (plumbing, heating, air conditioning, appliances, energy-saving considerations) and structures (lot and landscape, roofs, chimney, gutters, paved areas, walls, windows and doors, insect damage and storage areas).

§535.63.Education and Experience Requirements for a License.

(a)

License or experience in another state. Except as provided by this section, the commission will not accept a person's license in another state or experience in real estate brokerage or any related business in satisfaction of education or experience required for a license.

(b)

Education and experience requirements for a broker license.

(1)

Experience as a real estate broker or salesperson is accepted as experience for the purpose of applying for a real estate broker license. Experience is measured from the date a license is issued, and inactive periods caused by lack of sponsorship, or any other reason, cannot be included as active experience.

(2)

The commission may waive education and experience required for a real estate broker license if the applicant satisfies the following conditions.

(A)

The applicant must have been licensed as a Texas real estate broker or salesperson no more than six years prior to the filing of the application.

(B)

If the applicant was previously licensed as a Texas real estate broker, the applicant must have completed at least 15 hours of mandatory continuing education (MCE) courses within the two-year period prior to the filing of an application for an active license. If the applicant was previously licensed as a Texas real estate salesperson, the applicant must satisfy all current education requirements for an original broker license.

(C)

The applicant must have had not less than two years of active experience as a licensed real estate broker or salesperson during the eight-year period prior to the filing of the application.

(3)

Under the Texas Civil Statutes, Article 6573a (the Act), Section 7(g), a person who is the designated officer of a corporation or limited liability company which is licensed as a real estate broker in another state is deemed to be a licensed real estate broker in another state. The term "state" means one of the states, territories, and possessions of the United States and any foreign country or governmental subdivision thereof. A person licensed in another state may derive the required two years' experience from periods in which the person was licensed in two or more states. A person whose real estate broker license is on inactive status is deemed to be a licensed real estate broker in another state.

(4)

With respect to the education requirement of 60 semester hours in effect on or after January 1, 1985, the commission shall require not less than 12 semester hours (180 classroom hours) in courses reflecting course titles or course descriptions in the real estate disciplines including, but not limited to, the statutory subject areas identified in the Act, §7(a) and §7(j). The commission will publish periodically guidelines as to the acceptability of related courses. Provided, however, that an applicant for a broker license who was licensed as a salesperson subject to the annual education requirements set forth in this Act must provide the commission satisfactory evidence of having completed 12 semester hours (180 classroom hours) of core real estate courses that would have been required for the applicant's third annual renewal of a salesperson license.

(c)

Education requirements for a salesperson license.

(1)

In order to maintain a license, a salesperson subject to annual education requirements shall furnish documentation to the commission of successful completion of appropriate courses no later than the day the salesperson files an application with the commission to renew the salesperson's license.

(2)

The commission may waive the education required for a real estate salesperson license if the applicant satisfies the following conditions.

(A)

The applicant must have been licensed either as a Texas real estate broker or as a Texas real estate salesperson no more than six years prior to the filing of the application.

(B)

The applicant must have must completed any core real estate courses or real estate related courses which would have been required for a timely renewal of the prior license, or if the renewal of the prior license was not subject to the completion of core real estate courses or real estate related courses, the applicant must have completed at least 15 hours of mandatory continuing education (MCE) courses within the two-year period prior to the filing of an application for an active license.

§535.64.Accreditation of Schools and Approval of Courses and Instructors.

(a)

Application. A person desiring to offer educational programs or courses of study under approval of the commission pursuant to Texas Civil Statutes, Article 6573a, (the Act), §7(f), shall file an application on forms adopted by the commission accompanied by the fee prescribed pursuant to §11(9) of the Act. The commission may request additional information from an applicant which the commission deems to be relevant and material to the consideration of an application.

(b)

Standards for approval of application for accreditation. To be accredited as a school, the applicant must satisfy the commission as to the applicant's ability to administer courses with competency, honesty, trustworthiness and integrity. If the applicant proposes to employ another person, such as an independent contractor, to conduct or administer the courses, the other person must meet this standard as if the other person were the applicant. The applicant also must demonstrate that the applicant has sufficient financial resources to conduct its proposed operations on a continuing basis without risk of loss to students attending the school and that the proposed facilities will be adequate and safe for conducting classes.

(c)

Financial review. The commission shall review the financial condition of each proposed school to determine whether the school has sufficient financial resources to conduct its proposed operations on a continuing basis. In making this determination, the commission shall be conservative in the financial assumptions it makes concerning the school's proposed operations and its future cash flows. The applicant shall provide the following information:

(1)

personal financial statements prepared in accordance with generally accepted accounting principles, which shall include a current statement of financial condition and a current statement of net worth of each person who proposes to act as an owner or shareholder of the applicant or the school;

(2)

a proposed budget for the first year of operation; and

(3)

a market survey indicating the anticipated enrollment for the first year of operation.

(d)

Approval of application for accreditation. If it determines that the applicant meets the standards for accreditation and has furnished the bond or other acceptable security required by the Act, §7(f), the commission shall approve the application and provide a written notice of the accreditation to the applicant. Unless surrendered or revoked for cause, the accreditation will be valid for a period of five years.

(e)

Subsequent application for accreditation. No more than six months prior to the expiration of its current accreditation, a school may apply for accreditation for another five year period. If a school was accredited prior to the effective date of this section, the accreditation of the school expires January 1, 2001, and the school may apply for accreditation at any time.

(f)

Disapproval of application. If it determines that an applicant does not meet the standards for accreditation, the commission shall disapprove the application in writing. An applicant may request a hearing before the commission on the disapproval by filing a written request for hearing within 10 days following the applicant's receipt of the notice of disapproval. Following the hearing, the commission shall issue an order which, in the opinion of the commission, is appropriate in the matter concerned. Venue for any hearing conducted under this section shall be in Travis County. The disapproval and hearing are subject to the Administrative Procedure Act, Texas Government Code, §2001.001, et. seq., and to Chapter 533 of this title (relating to Practice and Procedure).

(g)

Forms. The Texas Real Estate Commission adopts by reference the following forms approved by the commission. These documents are published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

(1)

Form ED 1-0, Education Provider Application;

(2)

Form ED 2-0, Principal Application;

(3)

Form ED 3-0, Course Application;

(4)

Form ED 3A-0, Course Supplement Application;

(5)

Form ED 4-0, Instructor Application;

(6)

Form ED 5-0, Real Estate Provider Bond;

(7)

Form ED 6-0; Evaluation Form; and

(8)

Form ED 7-0, Instructor Manual Guidelines

(h)

Obtaining approval to offer course. An applicant shall submit Form ED 3-0 the first time approval is sought to offer a course. Once a course has been approved, no further approval is required for another accredited school to offer the same course. Prior to advertising or offering the course, however, the subsequent provider shall complete Form ED 3A-0, file the form with the commission and receive written or oral acknowledgment from the commission that all necessary documentation has been filed. A school shall submit an instructor's manual for each proposed course. The commission may require a copy of the course materials and instructor's manual to be submitted for each previously approved course the school intends to offer. Subsequent providers shall offer the course as originally approved or as revised with the approval of the commission and shall use all materials required in the original or revised course. Each manual must comply with Form ED 7-0, Instructor Manual Guidelines.

(i)

Standards for instructor approval. The application for commission approval of an instructor must be filed on forms adopted by the commission. To be approved as an instructor, a person must satisfy the commission as to the person's competency in the subject matter and ability to teach effectively. Each instructor must also possess the following qualifications:

(1)

a college degree in the subject area or five years professional experience in the subject area; and

(2)

three years experience in teaching or training; or

(3)

the equivalent of paragraphs (1) and (2) of this subsection as determined by the commission after due consideration of the applicant's professional experience, research, authorship or other significant endeavors in the subject area.

(j)

Approval of instructor. If the commission determines that the applicant meets the standards for instructor approval, the commission shall approve the application and provide a written notice of the approval to the applicant. Unless surrendered or revoked for cause, the approval will be valid for a period of five years.

(k)

Subsequent application for instructor approval. No more than six months prior to the expiration of the current approval, an instructor may apply for approval for another five year period. If an instructor was approved prior to the effective date of this section, the approval of the instructor expires January 1, 2001, and the instructor may apply for approval at any time.

(l)

Disapproval of application. The commission may disapprove an application for approval of an instructor for failure to meet the standard imposed by subsection (g) of this section, failure to satisfy the commission as to the applicant's honesty, trustworthiness or integrity , or for any reason which would be a ground to suspend or revoke a real estate license. Appeals from application disapprovals will be conducted in the manner required by the Act, §10. Hearings are subject to the Administrative Procedure Act, Texas Government Code, §2001.001, et. seq., and to Chapter 533 of this title (relating to Practice and Procedure).

(m)

Examination preparation courses. No school may be accredited or operate under commission approval for the sole purpose of offering courses of instruction designed to prepare its students for the state examination for any license issued by the commission. A school may offer an examination preparation course on a non-credit basis, provided the requirements of subsection (e) of this section have been met.

§535.65.Changes in Ownership or Operation of School; Presentation of Courses, Advertising, and Records.

(a)

Changes in Ownership or Operation.

(1)

A school shall obtain the approval of the commission in advance of any material change in the operation of the school, including but not limited to, ownership, location of main office and any other locations where courses are offered, management, and course formats. A request for approval of a change of ownership will be considered as if each proposed new owner had applied for accreditation of the school, and each new owner must meet the standards imposed by §535.64 of this title (relating to Accreditation of Schools and Approval of Instructors). A school requesting approval of a change in ownership shall provide the following information or documents to the commission:

(A)

the proportion of ownership of each proposed new owner,

(B)

a professional resume of each proposed new owner who would hold at least a 10% interest in the school;

(C)

personal financial statements of each proposed new owner who would hold at least a 10% interest in the school, which shall include the statement of financial condition and statement of net worth for the accounting period in which the application is made, prepared in accordance with generally accepted accounting principles;

(D)

a statement of any proposed changes in the operation or location of the school;

(E)

a new bond in the amount of $10,000 for the proposed new owner(s), a statement from the bonding company indicating that the former bond will transfer to the proposed new owner(s), or other security acceptable to the commission under the Act, §7(f).

(F)

a completed Form ED 1-0, Education Provider Application, reflecting all required information for the proposed new owner(s); and

(G)

a completed Form ED 2-0, Principal Information Form, for each proposed new owner who would hold at least a 10% interest in the school.

(b)

School facilities.

(1)

A school shall maintain a fixed office in the State of Texas. The office must be large enough for maintenance of all records, office equipment, files, telephone equipment, and office space for customer service. A school shall ensure that its classroom facilities are adequate for the needs of the school and pose no threat to the health or safety of students.

(2)

Except as provided by this section, every school shall be open to the public, and shall advertise all courses publicly so as to encourage reasonably an open enrollment. A school may obtain approval from the commission, however, to hold classes in facilities to which access has been limited by a governmental unit.

(c)

Responsibility of schools. A school is responsible to the commission for the conduct and administration of each course presentation, punctuality of classroom sessions, student attendance records, instructor performance and attendance, examination administration, proper student certification, and certification of records. A school shall establish business hours during which school staff are available for public inquiry and assistance. A school shall ensure that instructors or other persons do not recruit or solicit prospective salespersons or brokers in a classroom during class time.

(d)

Instructors.

(1)

A school shall select each instructor on the basis of expertise in the subject area of instruction and ability as an instructor. Except as provided by this section, a school may not utilize an instructor unless the instructor has been approved by the commission. A school shall require specialized training or work experience for instructors for specialized subjects such as law, appraisal, investments, or taxation. A school may use as a guest speaker a person who has not been approved as an instructor, provided that no more than a total of three hours of instruction in a 30-hour course are taught by persons who are not approved instructors.

(2)

An instructor shall teach a course in substantially the same manner represented to the commission in the instructor's manual or other documents filed with the application for course approval.

(3)

A school shall provide instructor evaluation forms for completion by students in every class and establish procedures for instructional review. The school shall file in the school records any comments by the school's management relevant to instructor evaluation reports. On demand by the commission the school shall produce student instructor evaluation forms for inspection.

(4)

A school shall ensure that at the beginning of each examination preparation course, the instructor reads aloud to all students the provisions of subsection (a) of §535.61 of this title (relating to Examinations).

(e)

Course examinations.

(1)

A school shall administer an examination approved by the commission in each course as a component of determining successful completion of a course of study. A school may not permit a student to take a final examination prior to the completion of any makeup required by this section. In the event of failure of a course final examination, a school may permit a student to retake a final examination once after at least a seven day waiting period and completion of additional course work prescribed by the school. A school shall require a student who fails the examination a second time to retake the course. A school shall require makeup final examinations to be completed within 90 days of the termination of the original class or report the students who do not timely complete the examination requirement as dropped from the class with no credit.

(2)

A school shall use final examinations consisting of at least 60 questions with an unweighted passing score of 70%. A school shall revise final course examinations for active courses at least annually and shall furnish the commission copies of all revisions. Each of the subjects required by statute or commission rule for a core course must be covered in the exam of that course. A school shall ensure that an examination proctor who is either a member of the school staff or faculty is present with the class during all regularly scheduled final course examinations.

(f)

Pre-enrollment agreements, tuition and fees.

(1)

Prior to the start of a course, a school shall provide each student with a pre- enrollment agreement signed by a representative of the school and the student. The agreement must include the following information:

(A)

the tuition for the course;

(B)

any fees charged by the school for supplies, materials, or books needed in course work, shown in an itemized fashion;

(C)

the school's policy regarding the refund of tuition and other fees, including a statement addressing refund policy when a student is dismissed or withdraws voluntarily ;

(D)

attendance requirements;

(E)

acceptable makeup procedures, including any applicable time limits and any fees that may be charged for makeup sessions; and

(F)

the procedure and fees for taking any permitted makeup final examination or any permitted re-examination, including any applicable time limits.

(2)

If the school cancels a course due to inclement weather, insufficient enrollment, instructor unavailability, or for any other reason, the school shall fully refund all fees collected from students or, at the student's option, the school may credit the student for another course. The school shall inform the commission when a student requests a refund because of a withdrawal due to the student's dissatisfaction with the quality of the course.

(3)

Any written advertisement by the school which contains a fee charged by the school must display all fees for the course in the same place in the advertisement and with the same degree of prominence.

(g)

Course materials.

(1)

A school shall update course materials during the period of time a course may be given to ensure that current and accurate information is provided to students. The school shall file updated course materials and revisions of the course outline with the commission prior to implementation, and the commission may direct a school to revise the materials further or cease use of materials. The commission may direct that the school withdraw texts.

(2)

A school shall provide each student with copies for the student's permanent use of any printed material which is the basis for a significant portion of the course. The school shall provide ample space on handouts for note taking or completion of any written exercises.

(h)

Presentation of courses.

(1)

A school shall present core real estate courses prescribed by the Act, §7(a) and real estate related courses accepted by the commission in no less than 30 classroom hours of instruction. The school shall advertise and schedule a course for the full clock hours of time for which credit is awarded.

(2)

A school may give one hour of credit for a minimum of 50 clock minutes of actual classroom session time. A school shall provide a break of at least 20 minutes to be given at least every two hours. While a school is expected to ensure that each student is present in the classroom for the hours of time for which credit is awarded, this section is not intended to penalize students who must leave the classroom for brief periods of time for personal reasons such as taking medication or responding to the call of nature.

(i)

Course credit and records.

(1)

Within ten days following the completion of a course, a school shall provide the commission with a class roster in a format approved by the commission. The listing of students must be numbered and in alphabetical order, with each student's last name shown first, and must show after each student's name the final grade of either passed, failed, incomplete, or dropped, in language or symbols that can be correlated with these categories. The school shall explain any other grade concisely but clearly. The school shall list all instructors used in the course on the roster.

(A)

"Passed" must be limited to those students who attended all of the scheduled classes or completed acceptable makeup and who successfully passed the final course examination based on passing standards approved by the commission.

(B)

"Failed" must be limited to those students who had acceptable classroom attendance but failed the final course examination. If, however, the school permits the student to retake the examination in accordance with subsection (e) of this section, the first failure must be reported as an incomplete grade.

(C)

"Incomplete" must be limited to those students who met the attendance requirements, but did not take the final course examination; those who attended at least two/thirds of the scheduled course hours but did not complete acceptable makeup; or those who fail the final course examination but will be permitted to take a second examination. If a student is reported incomplete and later completes acceptable makeup and the final examination, the school shall file a supplemental report with the commission giving the student's name and final grade report and using the same format and course data as the original class report. The school shall file a separate supplemental report for each individual class but may include more than one student on the report if all students were in the same original class.

(D)

"Dropped" must be limited to those students who missed more than two/thirds of the scheduled class in which they were originally enrolled; those who voluntarily terminated their enrollment; or those whose enrollment was terminated for cause by a school director.

(2)

A school may permit a student who attends at least two-thirds of a scheduled course to complete makeup work to satisfy attendance requirements. Acceptable makeup procedures are the attendance in the corresponding class sessions in a subsequent offering of the same course or the supervised presentation by audio or video recording of the class sessions actually missed. A school shall require all class makeup sessions to be completed within 90 days of the completion of the original course, or the student must be considered dropped with no credit for the course. A member of the school's staff must approve the makeup procedure to be followed. A student attending less than two-thirds of the originally scheduled course must automatically be dropped from the course without credit and reported as dropped. Dropped status may not be changed by makeup sessions, and any hours accumulated may not be transferred to any other course.

(3)

A school shall issue to the students successfully completing a course of instruction an official certificate which reflects the school's name, branch, course title, course numbers, and the number of classroom hours (or other recognized educational unit) involved in the course. All core course certificates must show the statutory core course title or other identification as prescribed by the commission. Certificates also must show the date of issuance and be signed by an official of the school, or if the certificate is computer printed, the school logo may be substituted for the signature. Letters or other official communications also may be provided to students for submission to the commission as evidence of satisfactory completion of the course. Such letters must fully reflect the school name, the course title and number, educational units, and be dated and signed by an official of the school, or if the letter is computer printed, the school logo may be substituted for the signature. A school shall maintain adequate security for completion certificates and letters. Compliance with this requirement will be determined by the commission during all school audits. A school may withhold a student's certificate of completion of a course until the student has fulfilled the student's financial obligation to the school.

(4)

A school shall maintain records of each student enrolled in any course for a minimum of five years. The full class file and student enrollment agreements must be retained for at least 12 months following completion of the class.

(5)

A school shall maintain financial records sufficient to reflect at any time the financial condition of the school. A school's financial statement and balance sheets must be available for audit by commission personnel, and the commission may require presentation of financial statements or other financial records.

(j)

Advertising. The following practices are prohibited:

(1)

using any advertising which does not contain the school's name;

(2)

representing that the school's program is the only vehicle by which a person may satisfy educational requirement for licensing;

(3)

conveying a false impression of the school's size, importance, location, equipment or facilities or

(4)

making unsubstantiated claims that the school's programs are superior to any other course of instruction;

(5)

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

(6)

making any statement which is misleading, likely to deceive the public, or which in any manner tends to create a misleading impression.

§535.66.Payment of Annual Fee, Audits, Investigations and Enforcement Actions.

(a)

Payment of annual fee. A school shall pay the fee prescribed by Section 11(10) of Texas Civil Statutes, Article 6573a (the Act) and by §535.101 of this title (relating to Fees) no later than the anniversary of the date of the school's accreditation. At least 30 days prior to the day the fee is due, the commission shall send a written notice to the school to pay the fee, but the school's obligation to pay the fee is not affected by any failure to receive the notice.

(b)

Audits and evaluations. Schools are subject to audit by commission employees. Commission employees may conduct audits without prior notice to the school, and may enroll and attend a course without identifying themselves as employees of the commission. Commission employees also may evaluate the effectiveness of course materials or instructors through surveys of students. The commission may require a school to furnish students with an evaluation form approved by the commission and to request that the students complete and return the form directly to the licensing and education division of the commission. An audit report or evaluation indicating noncompliance with these sections will be treated as a written complaint against the school or instructor concerned and will be referred to the enforcement division of the commission for appropriate resolution. Commission employees may file written complaints against a school or instructor if course completion rosters or other documents filed with the commission provide reasonable cause to believe a violation of these sections has occurred.

(c)

Complaints, investigations and hearings. Complaints, investigations, and hearings involving schools accredited by the commission and instructors are governed by the provisions of §535.73 of this title (relating to Compliance and Enforcement). Proceedings against schools and instructors will be conducted in the manner required by the Act, §17.

(d)

Grounds for disciplinary action against a school. The commission may issue a reprimand, place on probation, suspend or revoke accreditation of a school, or impose an administrative penalty when it has been determined that the school has been guilty of:

(1)

procuring or attempting to procure approval for a school, course or instructor by fraud, misrepresentation or deceit, or by making a material misrepresentation of fact in an application filed with the commission;

(2)

making a false representation to the commission, either intentionally or negligently, that a person had attended a course or a portion of a course for which credit was awarded, that a person had completed an examination, or that the person had completed any other requirement for course credit;

(3)

aiding or abetting a person to circumvent the requirements for attendance established by these sections, the completion of any examination, or any other requirement for course credit;

(4)

failing to provide within 15 days information requested by the commission as a result of a complaint which would indicate a violation of these sections;

(5)

making a materially false statement to the commission in response to a request from the commission for information relating to a complaint against the school or instructor; or

(6)

disregarding or violating a provision of these sections or of the Act; or

(7)

failing to maintain sufficient financial resources to continue operation of the school without placing students at risk of financial loss. The existence of any of the following conditions shall constitute prima facie evidence that a school's financial condition is insufficient for continuing operation:

(A)

nonpayment of a liability when due, if the balance due is greater than 5.0% of the school's current assets in the current or prior accounting period;

(B)

nonpayment of three or more liabilities when due, in the current or prior accounting period, regardless of the balance due for each liability;

(C)

a pattern of nonpayment of liabilities when due, in two or more accounting periods, even if the liabilities ultimately are repaid;

(D)

a current ratio of less than 1.75 for the current or prior accounting period, this ratio being total current assets divided by total current liabilities;

(E)

a quick ratio of less than 1.60 for the current or prior accounting period, this ratio being the sum of all cash equivalents, marketable securities, and net receivables divided by total current liabilities;

(F)

a cash ratio of less than 1.40 for the current or prior accounting period, this ratio being the sum of cash equivalents and marketable securities divided by total current liabilities;

(G)

a debt ratio of more than .40 for the current or prior accounting period, this ratio being total liabilities divided by total assets;

(H)

a debt-to-equity ratio of greater than .60 for the current or prior accounting period, this ratio being total liabilities divided by owners' or shareholders' equity;

(I)

a final judgment obtained against the school for nonpayment of a liability which remains unpaid more than 30 days after becoming final; or

(J)

execution of a writ of garnishment on any of the assets of the school.

(e)

Grounds for disciplinary action against instructor. The commission may issue a reprimand, place on probation, suspend or revoke approval of an instructor, or impose an administrative penalty when it has been determined that the instructor has been guilty of:

(1)

making a false representation to the commission, either intentionally or negligently, that a person had attended a course or a portion of a course for which credit was awarded, that a person had completed an examination, or that the person had completed any other requirement for course credit;

(2)

aiding or abetting a person to circumvent the requirements for attendance established by these sections, the completion of any examination, or any other requirement for course credit;

(3)

failing to provide within 15 days information requested by the commission as a result of a complaint which would indicate a violation of these sections;

(4)

making a materially false statement to the commission in response to a request from the commission for information relating to a complaint against a school or instructor; or

(5)

violating or disregarding any provision of the Act or a rule of the commission.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on June 14, 1999.

TRD-9903550

Mark A. Moseley

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: August 1, 1999

For further information, please call: (512) 465-3900