TITLE 22.EXAMINING BOARDS

Part 4. TEXAS COSMETOLOGY COMMISSION

Chapter 89. GENERAL RULES AND REGULATIONS

22 TAC §89.5

The Texas Cosmetology Commission proposes amendments to §89.5 of the Commission's rules. Section 89.5 lists the fees charged for various licenses issued by the commission and establishes timeframes within which licensees must notify the commission of a change of address. The commission proposes to add a new paragraph, §89.5(a)(5), stating that the fee charged for an initial school license is $500 and the fee charged to renew a school license is $200. The initial school license fee and renewal fee applies only to private beauty culture school cosmetology programs.

The Commission further proposes to amend §89.5(d) to lengthen the time in which individual licensees must notify the Commission of a change of address from 10 days to 30 days.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for the first five-year period that the amendments are in effect there will be no additional fiscal implications for state or local governments as a result of enforcing or administering these amendments. The proposed amendment concerning the license fee is not a substantive change of commission policy or practice, but merely memorializes in the rule what has for years been the standard policy and practice of the commission with respect to the licensing of private cosmetology school programs. Accordingly, this amendment to §89.5 has no fiscal implications with respect to commission revenue.

Ms. Humphrey, also has determined that for each year of the first five years the amendments proposing to add §89.5(a)(5) will be in effect, the public benefit anticipated as a result of enforcing the amendments will be to clarify the precise fees charged and collected by the Commission for private beauty culture school licenses. The economic cost to persons required to comply with this amendment for each year of the first five years that the amendment proposed will be in effect are that each person or organization seeking to operate a private beauty culture school will have to pay the initial license fee of $500, as well as a $200 renewal fee on an annual basis thereafter.

With respect to amendment of §89.5(d), Ms. Humphrey, has determined that for each year of the first five years the amendment as proposed will be in effect, the public benefit anticipated as a result of enforcing the amendment will be to enable licensees to have a more reasonable amount of time to contact the Commission with information concerning their change of address after transitioning to another location. There is no anticipated economic cost to persons who are required to comply with the amendment.

The amendments will have no impact on small businesses since the fee has already long been the policy and practice of the commission and the amendment merely codifies existing policy.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment adding §89.5(a)(5) is proposed pursuant to §1602.154 of the Texas Occupations Code which authorizes the Commission by rule to set fees, including renewal fees, for licenses and certificates issued under chapter 1602. The commission has authority to issue such licenses and certificates pursuant to §1602.303 relating to private beauty culture school licenses, and §1602.352 relating to the renewal of licenses issued under the Act. Section 1602.154 authorizes the commission to set fees in amounts reasonable and necessary to cover the cost of administering chapter 1602.

The amendment to §89.5(d) is proposed pursuant to §1601.151 of the Texas Occupations Code which authorizes the Commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter.

There are no other statutes affected by these amendments.

§89.5.License Fees

(a) The fees pertain to the following licensees at all times:

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

(5) School Licenses (initial) $500 School Licenses (renewal) $200

(b) - (c) (No change.)

(d) All licensees other than salons or private beauty culture, vocational cosmetology, and post secondary schools must notify the commission not later than thirty (30) [ 10 ] days following any change of address. The commission may send all notices on other information required by The Cosmetology Act or any commission rule to any licensee's last known address on file with 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 December 27, 2002.

TRD-200208536

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.8

The Texas Cosmetology Commission proposes an amendment to §89.8, concerning registration of students with the Commission for purposes of applying for a student permit. Section 89.8 specifies the documentation required to be submitted to the Commission once a student has enrolled in a school of cosmetology, and specifies the deadlines for submission of such documents in order to obtain credit for hours accrued. The proposed amendment to §89.8(a) seeks to remove the requirement that the student's enrollment contract be submitted to the Commission along with his or her registration form.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment.

Ms. Humphrey, also has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to remove cumbersome documentation requirements which serve limited informational value. There is no anticipated economic cost to persons who are required to comply with the amendment. The amendment will not have an effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.8 is proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter. This amendment implements §1602.266 of the Texas Occupations Code which authorizes the commission to require students enrolled in a cosmetology school to obtain a student permit from the commission.

There are no other statutes affected by these amendments.

§89.8.Student Registration.

(a) For each student enrolling, transferring, or re-enrolling in an introduction to cosmetology or cosmetology-related course in a school of cosmetology, the school must submit a properly completed registration form, [ with a copy of the student's enrollment contract and ] a $25 fee, to the commission office within ten 10 days of enrollment in order for the student to receive credit for hours accrued.

(b) (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 December 27, 2002.

TRD-200208537

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.9

The Texas Cosmetology Commission proposes an amendment to §89.9 which requires that student permits of students enrolled in a school be kept in alphabetical order in an album in the school. The amendment seeks to change the requirement of keeping the permits in alphabetical order from a mandatory requirement to a preferred method.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment.

Ms. Humphrey, also has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to avoid the issuance of violations to schools for overly technical requirements with regard to the display of permits of enrolled students by the school. It is preferred that schools alphabetize the student permits in the album in order that commission inspectors will be able to easily review enrollment and other records upon inspection. However, it is recognized that there are times when, by mere chance, an inspection will occur prior to the school having an opportunity to update the album alphabetically with the student permits recently received from the commission. There is no anticipated economic cost to persons who are required to comply with the amendment. The amendment will not have an effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.9 is proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter. This amendment implements §1602.266(a) governing the display of student permits by a school.

There are no other statutes affected by this amendment.

§89.9.Student Permit

Each student must have a permit with a picture affixed in one album in the school in which they are enrolled. The permits should [ must ] be in alphabetical order.

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 December 27, 2002.

TRD-200208538

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.11

The Texas Cosmetology Commission proposes an amendment to §89.11. Section 89.11 governs the tracking of daily attendance of students by cosmetology schools, including requiring that students clock out in certain instances where they leave the instructional facility, and including supervision requirements in the event instruction occurs outside the approved facility. The proposed amendments to §89.11(a)(4) seek to clarify that students are required to clock out when they leave the approved instructional facility for smoke breaks. The amendments further clarify that, in instances where instruction occurs on campus, but outside the commission-approved facility, students must be under the supervision of a licensed instructor.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments.

With regard to the amendment to §89.11(a)(4) requiring students to clock out before leaving the building for smoke breaks, Ms. Humphrey, has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to further clarify that leaving the facility for smoke breaks is not to be credited as instructional time accrued to the student's hourly records. The amendment will assist in avoiding abuses wherein which students who are clocked in and accruing instructional time are not present within the facility for extended periods of time. Unless students are required to clock out for smoke breaks taken away from the instructional facility, there is no way for a commission inspector to verify the length of time a student has been away from the facility, or whether, in fact, the person was not present in the facility for reasons unrelated to cosmetology instruction. The amendment will strengthen the commission's ability to ensure that hours credited to a student's record accurately reflects the instructional education they have received. There is no anticipated economic cost to persons who are required to comply with the amendment. The amendment will not have an adverse effect on small businesses.

With regard to the amendment to §89.11(a)(4) requiring that students be under the supervision of a licensed instructor in instances where instruction occurs on campus and outside the commission-approved facility, Ms. Humphrey, has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendment will be to establish consistency between the language of this rule and the language of other rules in Chapter 89 which require supervision of a licensed instructor in order for a student to receive credit for hours taken. The amendment does not represent a substantive change since §89.11(a)(4)(C) already requires the presence of a licensed instructor during all activities included in that rule and §89.4 already requires supervision by a licensed instructor in order to obtain credit for instructional hours accrued. However, clarification of the language by this amendment will maintain consistency within the language of the rule and avoid any suggestion that supervision by a non-licensed instructor (e.g. student instructor) is sufficient.

There is no anticipated economic cost to persons who are required to comply with the amendment. The amendment will not have an effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendments to §89.11 are proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 of the Code in order to implement the provisions of that chapter. Section 1602.151(a) also specifically authorizes the commission to prescribe the number of hours in each subject required to be taught in both private and public cosmetology schools. These amendments also implement §1602.451 which requires the holder of a private beauty culture school license to maintain a daily record of student attendance.

The amendments affect §1602.454 which requires a school to certify to the commission the number of hours accrued by students and §1602.551 which authorizes a commission inspector to verify a cosmetology school's compliance with state statutes and commission rules.

These amendments do not affect any other statutes.

§89.11.Daily Attendance Register.

(a) Each cosmetology school or program shall maintain a daily record of attendance with each student personally punching the time clock. Attendance records will be maintained in the school and available to authorized personnel of the Texas Cosmetology Commission, for a period of 48 months after the student completes or terminates attendance. All schools will be required to use a time clock to track student hours. All schools shall be required to post a sign at the time clock which states:

(1) - (3) (No change.)

(4) students leaving the facility for any reason, including smoke breaks, must clock out, except if an instructional area on a campus is located outside the approved facility, those areas must be approved by the commission and the students must be under the supervision of a licensed instructor.

(A) - (C) (No change.)

(b) - (c) (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 December 27, 2002.

TRD-200208539

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.15

The Texas Cosmetology Commission proposes amendments to §89.15, concerning authorization of various instructors licensed by the Texas Cosmetology Commission. Section 89.15 (a), (b), and (c) currently authorize cosmetology and specialty instructors licensed by the commission to instruct in private cosmetology schools and programs. The amendments make clear that the school in which the licensee instructs must be a school or program approved by the Texas Cosmetology Commission. The amendments further clarify that such licensees are authorized to instruct in any commission-approved cosmetology school or program, whether public or private.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment.

Ms. Humphrey, also has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be to further clarify in the rules the authorization granted to instructors licensed by the commission and to ensure that the rules accurately reflect the practices and understanding of the commission and the industry. The amendments do not represent a substantive change in practice of the agency or the industry since persons obtaining an instructor's license from the commission have always been viewed as being authorized to instruct in either private or public schools, as is contemplated by §1602.251 of the Texas Occupations Code. Likewise, both private and public schools have always been required to be approved by the Texas Cosmetology Commission in order to operate.

There is no anticipated economic cost to persons who are required to comply with the amendments. The amendments will not have an effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendments to §89.15(a), (b), and (c) are proposed pursuant to §1602.251(b) and (c) of the Texas Occupations Code governing the licensure requirements of cosmetology instructors in Texas and the facilities within which they may instruct, in conjunction with §§1602.151(a)(1), 1602.301, 1602.303 and 1602.304 of that Code governing the licensure and inspection requirements of public and private school facilities. Section 1602.151 authorizes the commission to adopt rules consistent with Chapter 1602 of the Texas Occupations Code in order to implement the provisions of that chapter.

These amendments do not affect any other statutes.

§89.15.Definitions of License Authorizations.

(a) Cosmetology Instructor License. A cosmetology instructor license authorizes the holder to instruct in any Texas Cosmetology Commission approved [ private ] cosmetology school or program, and practice all phases of cosmetology in a beauty salon and any of the specialties in a licensed specialty salon. A current photograph approximately 1 1/2 inches by 1 1/2 inches of the licensee shall be attached to the front of the license.

(b) Manicure Specialty Instructor License. A Manicure Specialty Instructor license authorizes the holder to instruct manicuring in any Texas Cosmetology Commission approved [ private ] cosmetology school, or program, and practice all phases of manicuring in a beauty salon or a licensed specialty salon. A current photograph approximately 1 1/2 inches by 1 1/2 inches of the licensee shall be attached to the front of the license.

(c) Facial Specialty Instructor License. A Facial Specialty Instructor license authorizes the holder to instruct facials in any phase of a Texas Cosmetology Commission approved [ private ] cosmetology school, or program, and practice all phases of the application of Facial cosmetics, manipulations, eye tabbing, arches, lash and brow tints, and the temporary removal of superfluous hair by the use of depilatory, mechanical tweezers, or wax in a beauty salon and in a licensed specialty salon. A current photograph approximately 1 1/2 inches by 11/2 inches of the licensee shall be attached to the front of the license.

(d) - (k) (No change.)

(l) Corporate License or Permit Application: General. Each corporate applicant for any license or permit must certify, before the license or permit is issued, that its state franchise taxes are current. Corporations exempt from the payment of the franchise tax and out-of-state corporation [ corporations ] must certify that they are exempt and specify the reason.

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 December 27, 2002.

TRD-200208540

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.20

The Texas Cosmetology Commission proposes an amendment to §89.20, concerning the length of coursework required to become eligible for a facial specialist license. The commission seeks to amend §89.20(c) to increase the number of hours of a facial specialist course in an approved school from 600 hours to 750 hours.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect, the fiscal implications for state or local governments as a result of enforcing or administering the amendment are that public school, junior college, and community college programs may incur limited additional costs in order to lengthen their facial specialty courses by 150 hours in order to comply with the rule. However, since most high school cosmetology programs do not provide specialty courses, and since many junior college and community college vocational programs will likely pass any added cost on to the students through tuition increases, the costs ultimately incurred by such governments agencies is likely to be minimal.

Ms. Humphrey, also has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to ensure that the educational requirements for licensure as a facial specialist are sufficient to enable students to become skilled and knowledgeable of the expanding subject material and recent developments in the facial industry. (e.g. micro-dermabrasion, etc.)

The potential anticipated economic cost to persons who are required to comply with the amendment is that students enrolling for a facial specialty course in a private beauty culture school may be faced with increased tuition as a result of the increased length of the course. In addition, with regard to students enrolled in a facial specialty course in a high school vocational program, such students may have graduation dates slightly later than otherwise. The amendments will not have an adverse effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.20(c) is proposed pursuant to §1602.151(a) of the Texas Occupations Code which authorizes the commission to prescribe the minimum curriculum, including the subjects and the number of hours in each subject, taught by private and public cosmetology schools. The amendment also implements §1602.257 of the Texas Occupations Code which requires the commission to prescribe the necessary coursework required to be eligible for licensure as a facial specialist.

This amendment will affect §1602.453 concerning the requirements that schools submit curriculum content and course length to the commission for approval. The amendment does not affect any other statutes.

§89.20.Length of Courses.

(a) - (b) (No change.)

(c) Facial Specialist. A facial specialist course shall be for 750 [ 600 ] hours in an approved school.

(d) - (e) (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 December 27, 2002.

TRD-200208541

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.30

The Texas Cosmetology Commission proposes to amend §89.30, concerning the application to take an examination for licensure in Texas. Section 89.30 describes the documentation necessary to be submitted to the commission in order to be scheduled for a licensure examination with the commission, and further describes the types of proof of identification which the commission will deem acceptable in order for an applicant to take the examination.

The commission first proposes to amend §89.30 to specify that a high school identification card must be current to be accepted. Second, the commission proposes to add language which will enable the commission to accept a government issued identification card other than a drivers' license, DPS identification card, military identification card, high school identification card, or resident alien card. Finally, the commission proposes to designate the current language of the rule as subsection (a) and add a new subsection (b), the language of which would require that the commission use a national testing service to provide the written portion of its current licensure examinations for those scheduled to take a an examination on or after April 1, 2003. The new subsection would also describe the procedures which an examination applicant must follow in order to be scheduled for the national examination as well as detail the cost of such examination.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments. All additional fees which examination applicants will be required to pay for purchase of the examination from the national testing service will be mailed by the students to the national testing service directly and will not constitute revenue of the commission.

Ms. Humphrey, also has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be to make it easier for examination applicants who do not have a drivers' license to comply with the requirements for proof of identification to take the examination, including applicants from other nations who may not have a resident alien card but do have a student visa or some other form of government issued identification. In addition, the transition to a written examination provided by a national testing service will result in the provision of a high quality written licensure examination that is legal defensible and fully-validated by testing professionals and industry experts.

The anticipated economic cost to persons who are required to comply with the amendment is that students who are scheduled for an examination on or after April 1, 2003 will be required to mail an additional application, along with a fee of either $12.50 or $14.25 depending on the language in which they wish the test to be provided, directly to the national testing service providing the written licensure examination. Students who are required to retake the examination due to failure or other reasons will be required to resubmit the aforesaid fees directly to the national testing service.

The amendments will not have an effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendments to §89.30 are proposed pursuant to §1602.151 and §1602.154 of the Texas Occupations Code which authorize the commission to adopt rules and set fees consistent with Chapter 1602 in order to implement the provisions of that chapter. In particular, this amendment implements §1602.259 of the Texas Occupations Code concerning selection and administering of a written and practical examination.

No other statutes are affected by this amendment.

§89.30.Examination Applications.

(a) Application for examination must be filed and processed and the examinee will be notified 10 days prior to his/her examination date. The examination application consists of the verification of the applicant's completion of the total hours and practical applications required, a statement that the agreed tuition and fees have been tendered, or arrangements made to tender the agreed tuition and fees, a current health certificate, not more than one year old, and a current photograph. A copy of the student permit and photograph must be posted in the school should the student continue to attend to accrue hours between the time of application and date scheduled for exam. The applicant for examination will be required to furnish a picture I.D. that includes the date of birth prior to the exam from one of the following: valid driver's license, a Texas Department of Public Safety identification card, a military identification card, a current high school identification card, a government issued identification card, or a resident alien card. No other proof will be accepted. Students holding dates scheduled for exam who do not appear without a seven-day notice to the commission of cancellation may be denied scheduling for at least 60 days.

(b) The commission shall contract with a national testing service to purchase the written portion of the examinations for licensure in the fields for which such written examinations are available.

(1) In order to be scheduled by the commission for examination on or after April 1, 2003, a separate application shall be submitted directly to the national testing service by the examination applicants which includes the applicant's name, social security number, permit or license number, language in which they wish the test to be provided, and whether they are taking the examination for the first time. The application to the national testing service shall include the correct fee and be made payable by money order, cashier's check, or certified check directly to the national testing service. No personal checks will be accepted. The fee is nonrefundable.

(2) In order to be scheduled for the examination, an applicant who either fails to appear for a scheduled examination, or is otherwise requires to retake the examination, must forfeit previously paid fees and submit another application and testing service fee to the national testing service directly.

(3) The fee to be paid by examination applicants directly to the national testing service is as follows:

(A) $12.50 for a written test in English or Spanish

(B) $14.25 for a written test in Vietnamese

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 December 27, 2002.

TRD-200208542

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.31

The Texas Cosmetology Commission proposes to amend §89.31, concerning the scoring methods used to grade commission licensure examinations and concerning the performance required of students to pass commission licensure examinations. Subsection (b) of §89.31 currently requires that, for the licensure examinations listed in subsection (b), the practical portion of the examination is given 2/3 weight and the written portion of the examination is given 1/3 weight in order to produce a total composite grade. Subsection (b) currently requires the student to make a composite score of 75% to pass the examination.

The Commission proposes to amend subsection (b) of §89.31 such that, with respect to the licensure examinations listed in subsection (b), the practical examination and the written examination will be graded separately and a student will receive an individual score for each portion of the examination. The amendments would require that a student receive a score of 70% on the practical portion and 70% on the written portion in order to pass the examination.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendments are in effect, there are no fiscal implications for state or local government as a result of enforcing or administering the amendments.

Ms. Humphrey, also has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be to ensure that persons who obtain a cosmetology or specialty license in Texas will have both a theoretical and practical expertise in the particular field for which they are licensed. There are no anticipated economic costs to persons who are required to comply with the amendments. The amendments will not have an effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendments to §89.31 are proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter. The amendment implements §1602.259 of the Texas Occupations Code which authorizes the commission to select, develop, and administer both a practical and written licensure examination.

No other statutes are effected by this amendment.

§89.31.Examination.

(a) (No change.)

(b) To pass the operator, facial, manicure, wig, hairweaving/braiding, and shampoo examinations, the examinee must have a score of seventy (70%) on the written exam and seventy (70%) on the practical [ are scored on a 2/3 practical and 1/3 written grade. The examinee must make a composite score of 75 percent to pass the examination ].

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 December 27, 2002.

TRD-200208543

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.35

The Texas Cosmetology Commission proposes an amendment to §89.35, governing the uniform requirements for cosmetology school students, certain licensees and employees, and examination applicants. The amendment seeks to add an additional requirement to subsection (a) to require that cosmetology school students wear closed toe and heel shoes.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment.

Ms. Humphrey, also has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to minimize sanitation concerns with respect to both students and customers, maximize safety, and promote an attitude of professionalism. There are no anticipated economic costs to persons who are required to comply with the amendment. The amendment will not have an effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.35 is proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter.

No other statutes are affected by this amendment.

§89.35.Uniforms.

(a) Cosmetology school students shall wear a uniform of washable material with armpits and chest covered as prescribed by the school. Tank tops, lingerie, see-through fabric, topless and bottomless uniforms, and bare feet are not allowed. Students must wear closed toe and heel shoe.

(b) - (c) (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 December 27, 2002.

TRD-200208544

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.39

The Texas Cosmetology Commission proposes to amend §89.39, concerning the licensing and inspection requirements of new salons. The amendment proposes to make certain technical changes with regard to the restroom and equipment requirements of a new salon. Specifically, the amendment replaces language in subsection (b)(4) to allow for a required public restroom to be located in an adjoining property, replaces language in subsection (c)(1)(C) and (6)(C) relating to the number of shampoos bowls required for certain facilities, and clarifies language in subsection (c)(6)(D) relating to the type of dryers required in a hairweaving/braiding salon.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments.

Ms. Humphrey, also has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be as follows: (1) The amendment to subsection (b)(4) will make it more feasible and less costly for new salons to comply with commission public restroom requirements by allowing such restrooms to be on an adjoining property; (2) The amendment to subsection (c)(1)(C) and (6)(C) replacing the technical numerical requirements for shampoo bowls in a salon with general language requiring a sufficient number of shampoo bowls provides a more workable standard for new salons, particularly as relates to large salons with a large amount of work stations; (3) The amendment to subsection (c)(6)(D) avoids confusion concerning what type of dryer is sufficient for hairweaving/braiding salons.

There are no anticipated economic costs to persons who are required to comply with the amendments. The amendments will not have an adverse effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendments to §89.39 are proposed pursuant to §1602.151(a) of the Texas Occupations Code which authorizes the commission to establish sanitation rules to prevent the spread of infectious or contagious diseases, §1602.302 which authorizes the commission to establish the particular requisites for beauty shops, and §1602.151(b) which authorizes the commission generally to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter.

No other statutes are affected by these amendments.

§89.39.New Salon.

(a) License requirements: Before a beauty or specialty salon may open for business, the facility must obtain a license. The application and fees must be submitted to the Texas Cosmetology Commission at least 45 days in advance of the anticipated opening date. The facility must be inspected for approval as near to the opening date as possible. If the facility is licensed, pending the inspection the salon may be open until the final approval is granted. The facility will be given 10 work days to correct any deficiencies. No salon may advertise, practice, or attempt to practice under the name or trade [ name ] of another licensee under this Act.

(b) Requirements for all salons:

(1) - (3) (No change.)

(4) A restroom must be made available to the public within the facility or on an adjoining property [ directly connected to the salon with a sink or a public restroom available for client use ].

(5) - (13) (No change.)

(c) Additional requirements by specialty:

(1) Beauty Salon:

(A) - (B) (No change.)

(C) an adequate or sufficient amount of shampoo bowls [ a minimum of one shampoo bowl and shampoo chair for each three operators ];

(D) (No change.)

(2) - (5) (No change.)

(6) Hairweaving/Braiding Salon:

(A) - (B) (No change.)

(C) an adequate or sufficient amount of shampoo bowls [ a minimum of one shampoo bowl and shampoo chair for each three hairweaver/braiders ]

(D) one chair dryer/handheld dryer for each three hairweaver/braiders

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 December 27, 2002.

TRD-200208545

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.41

The Texas Cosmetology Commission proposes an amendment to §89.41, concerning the change of location of a salon or school. This section specifies the procedures, notification deadlines, and inspection requirements involved in the change of location of a salon or school. The amendments specify that a change of address of a salon or school must be reported within 30 days of relocation. The amendments also restate that all salon or school relocations will require a re-inspection.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments. With respect to the requirement for re-inspection, the amendment does not involve a substantive change in policy or practice, but merely restates and further clarifies what has long been the policy and practice of the commission pursuant to its rules.

Ms. Humphrey, also has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be that the deadline stated in the rule for reporting of a change of address will be unambiguous, more clearly verifiable by commission inspectors, and more workable in terms of insuring that inspectors can coordinate their inspections with the actual time when an establishment has opened for business in another location. The amendment also provides further clarity within the rule that re-inspections are required in all instances where a change of location of a school or salon is involved.

There are no anticipated economic costs to persons who are required to comply with the amendments. The amendments will not have an effect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendments to §89.41 are proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter. The amendments specifically implement §1602.551 governing the authority of commission inspectors to enter a license holder's facilities to ensure compliance with state law and commission rules.

The amendments also affect §§1602.301 - 1602.305 which govern the commission's authority to prescribe rules for and inspect school and salon facilities licensed by the commission. The amendments do not effect any other statutes.

§89.41.Change of Location of a Salon or School.

(a) A salon or school may move and continue to operate with the current license, but must be inspected and approved under the current requirements in the new location. The salon or school must notify the commission office in writing of the change of address as within thirty (30) days of re-location. All salon or school re-locations will require re-inspection. [ soon as the change of address becomes available. ]

(b) (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 December 27, 2002.

TRD-200208546

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.42

The Texas Cosmetology Commission proposes an amendment to §89.42, concerning the requirements to make a restroom available in facilities licensed by the commission. The amendment proposes to delete language in the rule that currently allows that salons licensed prior to September 1, 1971, will not be required to have restrooms in direct connection with the salon. The amendment further clarifies that all commission-licensed facilities are required to have a restroom available to the public within the facility or located on an adjoining property. Finally, the amendment would require only restrooms within the licensed facility to meet sanitary rules and regulations.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment.

Ms. Humphrey, also has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be to ensure that all commission-licensed facilities have public restrooms available in the vicinity, to make it more feasible and less costly for new salons to comply with public restroom requirements by allowing such restrooms to be on an adjoining property, and to make clear that the commission's sanitary regulations will not apply to restrooms not within the direct control of the facility licensee.

There are no anticipated economic costs to persons who are required to comply with the amendments. The commission is unaware of any facilities which have had their licenses issued prior to 1971 and which also continue to lack a restroom available to the public within or adjoining the facility. Furthermore, to the extent that there might be a small number of licensees who remain in a facility that was issued a license prior to 1971, building codes in those regions should more than likely ensure that owners of a commercial property undertake the necessary renovations to comply with requirements of the amendment.

Futhermore, the amendment may reduce costs of compliance with commission standards by enabling many licensed facilities to fulfill the restroom requirements simply by having a restroom available on an adjoining property such as an office building. The amendments will not have an adverse affect on small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendments to §89.42 are proposed pursuant to §1602.151(a) of the Texas Occupations Code which authorizes the commission to establish sanitation rules to prevent the spread of infectious or contagious diseases in all licensed facilities, and §1602.151(b) which authorizes the commission generally to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter.

The amendment also affects §1602.302 which authorizes the commission to establish the particular requisites for beauty shops. No other statutes are affected by these amendments.

§89.42.Restrooms.

[ All licensed salons issued licenses prior to September 1, 1971, will not be required to have restrooms in direct connection with said salon. ] If a restroom is provided for clients or operators, then the Texas Cosmetology Commission reserves the right to inspect said facility. All licensed facilities [ after September 1, 1971, ] will be required to have a restroom with sink and commode, or have a public restroom available to the public within the facility or located on an adjoining property . Restrooms within the facilities must meet all sanitary rules and regulations in regard to sanitation.

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 December 27, 2002.

TRD-200208547

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.43

The Texas Cosmetology Commission proposes amendments to §89.43, concerning the items required to be posted in salons and schools licensed by the commission. The section currently requires schools and salons to post, among other things, the establishment's normal business hours. Schools are also currently required to post their behavioral rules and regulations. The amendments seek to delete the language currently in subsection (c)(1) which allows a school or salon to file with the commission a certification of its normal business hours in lieu of displaying those hours so as to be visible from the outside of the business. The amendment also clarifies that a school need not post its rules and regulations concerning behavior, dress, attendance, and progress as long as that information is made available.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment.

Ms. Humphrey, also has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be to ensure that customers of a salon are provided with adequate information concerning the working hours of the salon, and to provide inspectors, upon arrival at a closed establishment, with sufficient information to determine when to return. With respect to removing the requirement that schools post their rules and regulations regarding behavior, dress, attendance, and progress, the amendment will alleviate cumbersome posting requirements for schools while still requiring the information to be available upon request.

There are no anticipated economic costs to persons who are required to comply with the amendments. The amendments will not affect small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendments to §89.43 are proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter. The requirement to post hours of operation also implements §1602.551 regarding access of inspector to a license holders' premises.

No other statutes are affected by these amendments.

§89.43.Items to be Posted in Salon or School.

(a) - (b) (No change.)

(c) Each establishment at which the instruction or practice of cosmetology is being conducted shall prominently display to the public its normal business hours.

(1) The normal business hours of the establishment must be displayed so as to be visible from the outside of the business and shall be located at or near the main entrance of the establishment. [ In lieu of the foregoing requirements, the licensee shall file with the commission a certification of its normal business hours. ]

(2) Schools must make available [ post ] rules and regulations on behavior, attendance, dress, and progress, and the school may suspend or terminate a student for noncompliance. Schools must place the current commission rules and regulations book in a place where it will be readily accessible to students.

(3) (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 December 27, 2002.

TRD-200208548

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.47

The Texas Cosmetology Commission proposes an amendment to §89.47, concerning the services that may be provided by a facial specialty salon. The amendment proposes to add a new subsection (a)(7) to the list of services that a facial specialty salon may provide. That new subsection would include micro-dermabrasion as a service which a facial specialty salon can provide.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment.

Ms. Humphrey, also has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to clarify confusion concerning whether micro-dermabrasions can be provided by licensed facial specialty shops, while also providing a means by which to more adequately regulate the activity on behalf of the public.

There are no anticipated economic costs to persons who are required to comply with the amendment. The amendments will not adversely affect small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.47 is proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter. In particular, the amendment implements or otherwise affects §1602.305 concerning the issuance of specialty shop licenses.

No other statutes are affected by this amendment.

§89.47.Definition of a Facial Specialty Salon.

(a) A facial specialty salon is an establishment where only the following services may be performed:

(1) - (6) (No change.)

(7) micro-dermabrasion

(b) (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 December 27, 2002.

TRD-200208549

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.55

The Texas Cosmetology Commission proposes an amendment to §89.55, concerning refresher courses provided by Texas cosmetology schools. Section 89.55 generally allows a person already licensed by the commission to enroll in a refresher course and service clients in a school for a limited period of time without receiving compensation. The amendment seeks to eliminate the current restriction preventing a licensee in a refresher course from servicing clients in a school for more than a 60 calendar day period once every three years. The amendment would do away with any restriction concerning the length of time a licensee can enroll and perform services in a school's refresher course.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendment.

Ms. Humphrey, also has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to provide commission licensees with the flexibility to determine their own needs with respect to a refresher course. There are no anticipated economic costs to persons who are required to comply with the amendment. The amendments will not affect small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.55 is proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter. In addition, the amendment otherwise affects §1602.456(b) concerning the ability of a school to receive compensation for the services performed by certain persons.

No other statutes are affected by this amendment.

§89.55.Refresher Courses/Schools Performing Services.

Schools of cosmetology may enroll applicants for a refresher course. A person who holds a valid Texas license may service clients in the school [ for a 60 calendar day period of time once every three years ]. The school may receive compensation for services performed by a student holding a valid Texas license; however, the student may not receive compensation.

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 December 27, 2002.

TRD-200208550

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.56

The Texas Cosmetology Commission proposes an amendment to §89.56, concerning administrative processing fees. This section specifies the policies of the commission relating to acceptance of checks and money orders and assesses administrative fees in certain instances. The proposed amendment seeks to delete current paragraph (2) thereby removing the prohibition against sending personal checks to the commission. The proposed amendment re-numbers the remaining paragraphs accordingly and makes minor modifications to new paragraph (2) to clarify that all business checks are acceptable as well. Finally, the proposed amendment insures that administrative fees for insufficient fund checks are uniformly applied to all business and personal checks.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be some limited fiscal implications for state or local governments as a result of enforcing or administering the amendment. In particular, it is expected that the commission's acceptance of personal checks of individuals will result in a certain proportion of those checks being returned for insufficient funds. Since the agency has not yet accepted personal checks on a large scale, the agency does not have sufficient data at this time to determine the precise percentage of checks that should be expected to fall in the return category, the proportion of those returned checks which will likely remain unpaid, and the proportion of those checks that will result in the collection of the assessment fee prescribed by §89.56.

Ms. Humphrey, also has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be that the commission will uniformly accept all checks from either a school, salon, or individual, thus expanding the methods which can used to make payments and maximizing the convenience of the licensee.

The probable economic costs to persons who are required to comply with the amendment is that those who send checks for "insufficient funds" will be required to cover the cost of the bounced check, pay an added administrative fee, and possibly be required to pay additional late charges relating to licensure deadlines that have been missed as a result of the check not being accepted.

The amendments will not affect small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.56 is proposed pursuant to §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order to implement the provisions of that chapter. In addition, the amendment is proposed pursuant to §1602.154 concerning the authority of the commission to set certain fees in amounts reasonable and necessary to cover the cost of administering this chapter.

The amendment also affects §1602.352 of the Texas Occupations Code relating to various license renewal fees, delinquency charges and other charges that may result from check payments being returned late. No other statutes are affected by this amendment.

§89.56.Administrative Processing Fees.

All schools, salons, independent contractors, and licensees will be held responsible for the following.

(1) (No change.)

[(2) The commission does not accept personal checks. Personal checks sent to the commission will be returned and a $10 processing fee will be charged.]

(2) [ (3) School ] Business checks, money orders, and cashier's checks are acceptable. Insufficient fund school checks will result in a $28 return check fee being charged. to the school. The second check sent to the commission must be for the correct amount, with a $28 money order, cashier's check, or bank check. If a second check is returned insufficient, an additional $28 insufficient charge will be assessed. No services will be performed until the required fees are paid and in good standing.

(3) [ (4) ] If personal checks are returned to the sender resulting in acceptable payment being after the deadline, the license will be assessed the late charge fee. Acceptable payment procedure must be completed before the published deadline for the license.

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 December 27, 2002.

TRD-200208551

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.71

The Texas Cosmetology Commission proposes to amend §89.71, concerning the procedures by which a new secondary or post-secondary public cosmetology school may obtain certification from the commission. The current rule lists the documentation which a public school cosmetology program is required to submit to the commission in order to be considered for certification by the commission. The proposed amendment would add a new paragraph (6) specifying that such applications for certification must include a $200 inspection fee as part of the application to the commission.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendment. The proposed amendment is not a substantive change of commission policy or practice, but merely codifies in the rule what has already been the standard policy and practice of the commission with respect to the inspection fee for certification of a public school cosmetology program. Accordingly, the rule has no fiscal implications with respect to either commission revenue or the costs incurred by local school districts.

Ms. Humphrey, has also determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to memorialize in the rules what is already current practice concerning the inspection fee charged to public schools for certification with the commission.

The probable economic cost to persons required to comply with this amendment for each year of the first five years that the amendment proposed will be in effect are that each secondary or post-secondary public school cosmetology program will be required to pay a $200 inspection fee for each inspection trip required prior to the commission issuing certification to the school.

The amendment will not affect small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.71 is proposed pursuant to implementation of §1602.304 of the Texas Occupations Code which authorizes the commission to charge an inspection fee for each trip required before approval of the certificate. The commission is further authorized by §1602.154 of the Code to set fees, including renewal fees for licenses and certificates issued under chapter 1602, in amounts reasonable and necessary to cover the costs of administering the chapter.

There are no other statutes affected by this amendment.

§89.71.New Secondary or Post-Secondary Public Cosmetology Certification.

An institution making application for public school cosmetology certification must submit at least 45 days prior to the tentative opening date:

(1) - (3) (No change.)

(4) an inspection report of fire marshal [ marshall ]l and electrical inspector; [ and ]

(5) a copy of the curriculum for each course offered, and ;

(6) Inspection fee $200.

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 December 27, 2002.

TRD-200208552

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.72

The Texas Cosmetology Commission proposes an amendment to §89.72, which details the substantive curriculum requirements for the various specialties recognized by the commission. The amendment proposes to delete certain language in the shampoo and conditioning specialist curriculum that limit the instruction involving application of weekly rinses and semi-permanent rinses to those that do not require hydrogen peroxide.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendment

Ms. Humphrey, also has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to enable cosmetology students to have a greater versatility of skills with respect to application of certain weekly rinses.

There are no anticipated economic costs to persons who are required to comply with the amendment. The amendment will not affect small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.72 is proposed pursuant to §1602.151(a) of the Texas Occupations Code which authorizes the commission to prescribe the minimum curriculum taught by public and private cosmetology schools in Texas.

The amendment to §89.72 will affect §1602.451 and §1602.453 of the Texas Occupation Code which relate the curriculums used in a private beauty culture school. No other statutes are affected by this amendment.

§89.72.Curriculum Posted.

The curriculum listed has been established by the Texas Cosmetology Commission and must be followed by all cosmetology schools. The curriculum shall be posted in a conspicuous place in the school. A current syllabus and lesson plans for each course shall be maintained by the school and be available for inspection. Operator Curriculum:

(1) - (6) (No change.)

(7) Hairweaving/Braiding Specialists curriculum (total 300 hours): The hairweaver/braider will only be allowed to practice those skills as enumerated in [ the ] hairweaving/braiding curriculum:

(A) - (B) (No change.)

(C) Hairweaving/Braiding 150 hours:

(i) Procedures:

(I) - (III) (No change.)

(IV) sizing and finishing by hand of hair ends [ or by using ] mechanical equipment.

(ii) (No change.)

(D) - (E) (No change.)

(8) Shampoo and conditioning specialist curriculum (total 150 hours). Under no conditions will the certificate holder do any other skills but those prescribed in this subparagraph by the commission:

(A) - (C) (No change.)

(D) procedures 100 hours:

(i) - (iii) (No change.)

(iv) application of weekly rinses or semi-permanent rinses [ not requiring hydrogen peroxide ];

(v) - (x) (No change.)

(E) - (G) (No change.)

(9) (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 December 27, 2002.

TRD-200208553

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


22 TAC §89.74

The Texas Cosmetology Commission proposes to amend §89.74, concerning programs for voluntary continuing education in cosmetology. That section describes the criteria and verification requirements for acceptance of hours of continuing education by the commission. The commission proposes to amend subsection (g) concerning appropriate time limits for breaks taken during a continuing education program. Specifically, the amendment would strike language limiting the number and time limit of breaks in a four hour period and restate that a 10-minute break is permitted after each 50 minutes of instruction.

Antoinette Humphrey, Executive Director of the Texas Cosmetology Commission, has determined that for each year of the first five-years that the amendment is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendment

Ms. Humphrey, also has determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be to avoid confusion as to the extent of break time permitted for each hour of instruction and avoid inconsistent application of the rule in practice.

There are no anticipated economic costs to persons who are required to comply with the amendment. The amendment will not affect small businesses.

Comments may be submitted to Stephen Vigorito, Texas Cosmetology Commission, P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7608. Comments may also be submitted electronically to stephen.vigorito@txcc.state.tx.us or faxed to (512) 374-1564.

The amendment to §89.74 is proposed pursuant §1602.151 of the Texas Occupations Code which authorizes the commission to adopt rules consistent with Chapter 1602 in order implement the provisions of that chapter. The amendment is proposed in conjunction with §1602.354 which authorizes the commission to recognize, prepare, and administer continuing education programs in cosmetology.

No other statutes are affected by the amendment.

§89.74.Program for Voluntary Continuing Education.

(a) - (f) (No change.)

(g) The credit will accrue at one hour of credit for each 50 minutes of classroom instruction, with a 10-minute break . [ No more than one break of 30 minutes per four hours of instruction will be allowed. No more than two breaks can be given in each four-hour period of instruction. ]

(h) - (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 December 27, 2002.

TRD-200208554

Antoinette Humphrey

Executive Director

Texas Cosmetology Commission

Earliest possible date of adoption: February 2, 2003

For further information, please call: (512) 380-7608


Part 9. TEXAS STATE BOARD OF MEDICAL EXAMINERS

Chapter 184. SURGICAL ASSISTANTS

22 TAC §§184.4, 184.6, 184.8

The Texas State Board of Medical Examiners proposes amendments to §§184.4, 184.6, and 184.8, concerning licensure documentation, licensure renewal and examination. The amendments allow the board to prorate the initial annual renewal fees in order to set up a system to have surgical assistants renew their license on the same date and to clarify several other sections of the rule.

Michele Shackelford, General Counsel, 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 the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be clarification of rules and to prorate annual renewal system. There will be no effect on small or micro businesses.

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 authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

The following are affected by the proposed amendments: Texas Occupations Code Annotated, Chapter 206, Subchapter E.

§184.4.Qualifications for Licensure.

(a) Except as otherwise provided in this section, an individual applying for licensure must:

(1) - (10) (No change.)

(11) pass an independently evaluated surgical or first assistant examination approved by the board;

(12) - (16) (No change.)

(b) An applicant who submits an application before September 1, 2002 must provide documentation that the applicant has passed a surgical or first assistant [ an ] examination required for certification by one of the following certifying boards:

(1) - (3) (No change.)

(c) (No change.)

§184.6.Licensure Documentation.

(a) (No change.)

(b) Documentation required of all applicants for licensure.

(1) - (3) (No change.)

(4) Certification. All applicants must submit:

(A) (No change.)

(B) a certificate of successful completion of an educational program whose curriculum includes surgical assisting submitted directly from the program [ on a form provided the board ], unless the applicant qualifies for the special eligibility provision regarding education under §184.4(c) of this title (relating to Qualifications for Licensure).

(5) - (6) (No change.)

(7) License verifications. Each applicant for licensure who is licensed, registered, or certified in another state must have that state submit directly to the board, [ on a form provided by the board, ] that the applicant's license, registration, or certification is current and in full force and that the license, registration, or certification has not been restricted, suspended, revoked or otherwise subject to disciplinary action. The other state shall also include a description of any sanctions imposed by or disciplinary matters pending in the state.

(c) (No change.)

§184.8.License Renewal.

(a) (No change.)

(b) The board may prorate the length of the initial surgical assistant registration and registration fees, so that registrations expire on a single date, regardless of the board meeting at which the surgical assistant is licensed.

(c) [ (b) ] The board shall provide written notice to each practitioner at the practitioner's address of record at least 30 days prior to the expiration date of the license.

(d) [ (c) ] Within 30 days of a surgical assistant's change of mailing, residence or office address from the address on file with the board, a surgical assistant shall notify the board in writing of such change.

(e) [ (d) ] Falsification of an affidavit or submission of false information to obtain renewal of a license shall subject a surgical assistant to denial of the renewal and/or to discipline pursuant to §206.301 of the Act.

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 December 20, 2002.

TRD-200208462

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: February 2, 2003

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


Chapter 187. PROCEDURAL RULES

The Texas State Board of Medical Examiners proposes amendments to §187.18 and §187.39, concerning procedural rules. The amendments regard costs of administrative hearings and informal settlement conferences based on personal appearance.

Michele Shackelford, General Counsel, 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 the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be updated regulations. There will be no effect on small or micro businesses.

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.

Subchapter B. INFORMAL BOARD PROCEEDINGS

22 TAC §187.18

The amendments are proposed under the authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

The following are affected by the proposed amendments: Texas Occupations Code Annotated, Chapter 164, Subchapter A.

§187.18.Informal Show Compliance Proceeding and Settlement Conference Based on Personal Appearance ("ISC").

(a) Notice of the ISC shall be extended to the licensee and the complainant(s) in writing, by hand delivery, regular mail, certified mail - return receipt requested, overnight or express mail, courier service, or registered mail, to the address of record of the complainants and the address of record of the licensee or the licensee's authorized representative to be received at least ten days prior to the date of the ISC. The notice shall include the time, date, and location of the ISC; the rules governing the proceeding; the deadline for submitting any additional material for presentation to the board representatives; and a brief written statement of the nature of the allegations to be addressed at the ISC. [ If there is no written request for an informal show compliance proceeding based on written information, the licensee shall be scheduled to appear for an ISC with one or more board representatives. ]

(b) Unless a timely written request from the licensee for an informal show compliance proceeding based on written information is received, the licensee shall be scheduled to appear in person for an ISC with one or more board representatives. [ Notice of the ISC shall be extended to the licensee and the complainant(s) in writing, by hand delivery, regular mail, certified mail - return receipt requested, overnight or express mail, courier service, or registered mail, to the address of record of the licensee or the licensee's authorized representative to be received at least ten days prior to the date of the ISC. The notice shall include the time, date, and location of the ISC; the rules governing the proceeding; the deadline for submitting any additional material for presentation to the board representatives; and a brief written statement of the nature of the allegations to be addressed at the ISC. ]

(c) - (d) (No change.)

(e) The ISC shall allow:

(1) - (6) (No change.)

(7) questioning of the witnesses in a manner prescribed by the panel ;

(8) - (10) (No change.)

(f) The board representatives, board staff, the licensee, and the licensee's authorized representative shall be present during the presentation of statements and testimony during the ISC. [ The board representatives may exclude from the ISC all persons except witnesses during their testimony or presentation of statements, the licensee, the licensee's authorized representative, board representatives, and board staff. ]

(g) Notwithstanding subsection (f) of this section, the board representatives may allow the person alleged to have suffered harm due to actions of the licensee to testify outside the physical presence of the licensee to protect the person from harassment and/or undue embarrassment, for personal safety concerns, or for any other demonstrated and legitimate need. If such testimony is allowed, arrangements will be made to allow the licensee to listen to the testimony contemporaneously as it is given.

(h) [ (g) ] All evidence that a licensee wishes the board representatives to consider at the ISC must be submitted to the board at least seven days before the ISC. The board representatives may refuse to consider any evidence not submitted in a timely manner. If the board representatives allow the licensee to submit late evidence, the representatives may reschedule and/or assess an administrative penalty for the late submission.

(i) [ (h) ] During the ISC, the board's legal counsel shall be present to advise the board representatives or the board's employees.

(j) [ (i) ] At the ISC, the board representatives shall attempt to resolve disputed matters and the representatives may call upon the board staff at any time for assistance in conducting the ISC.

(k) [ (j) ] The board representatives shall prohibit or limit access to the board's investigative file by the licensee, the licensee's authorized representative, the complainant(s), witnesses, and the public consistent with Act, §164.007 [ §164.006 ].

(l) [ (k) ] Although the participants may make notes, mechanical or electronic recordings shall not be made of the ISC, settlement discussions, or mediation efforts.

(m) [ (l) ] The ISC shall be informal and shall not follow the procedures established under this title for formal board proceedings.

(n) [ (m) ] At the conclusion of the presentations, the board representatives shall deliberate in order to make recommendations for the disposition of the complaint or allegations. During the deliberations by the board representatives, the board representatives shall exclude, except with agreement of the licensee, the board staff who presented the allegations and facts related to the complaint against the licensee, the licensee, the licensee's authorized representative, the complainant(s), witnesses, and the general public. Counsel of the board shall be available for assistance during deliberations.

(o) [ (n) ] The board representatives may make recommendations to dismiss the complaint or allegations.

(p) [ (o) ] Upon a determination by the board representatives that the licensee has violated the Act, board rules, or board order, the board representatives may propose resolution of the issues to the licensee to be reduced to writing and processed in accordance with §187.19 of this title (relating to Resolution by Agreed Order).

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 December 20, 2002.

TRD-200208463

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: February 2, 2003

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


Subchapter D. FORMAL BOARD PROCEEDINGS

22 TAC §187.39

The amendments are proposed under the authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

The following are affected by the proposed amendments: Texas Occupations Code Annotated, Chapter 164, Subchapter A.

§187.39.Costs of Administrative Hearings.

(a) - (b) (No change.)

(c) Appeal. The costs of transcribing the testimony and preparing the record for an appeal by judicial review shall be paid by the party who appeals [ respondent ].

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 December 20, 2002.

TRD-200208466

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: February 2, 2003

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


Chapter 191. DISTRICT REVIEW COMMITTEES

22 TAC §§191.1, 191.3, 191.5

The Texas State Board of Medical Examiners proposes amendments to §§191.1, 191.3 - 191.5, concerning district review committees. The amendments are necessary for general clean up to the chapter.

Elsewhere in this issue of the Texas Register , the Texas State Board of Medical Examiners contemporaneously proposes the rule review of Chapter 191.

Michele Shackelford, General Counsel, 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 the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be current and updates rules. There will be no effect on small or micro businesses.

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 authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

The following are affected by the proposed amendments: Texas Occupations Code Annotated, §§163.001-163.005.

§191.1.Purpose.

The purpose of this chapter is to establish district review committees as required by the Medical Practice Act, Tex. Occ. Code Ann. §§163.001 - 163.005. [ Texas Civil Statutes, Article 4495b, section 5.03(b) ].

§191.3.Committee Meetings.

[(a) At the first committee meeting following the appointment of a new member to the committee, and at other times as the committee feels appropriate, an election shall be held to elect a chairman, vice chairman, and reporting secretary. If more than two candidates contest an election, and if no candidate receives a majority on the first ballot, a second ballot will be conducted between the two candidates receiving the highest number of votes.]

(a) [ (b) ] Meetings of the committee may be called by the executive director or president of the board. When the committee or committee members wish to call a meeting, they shall first secure authorization for the meeting from the executive director or the president.

(b) [ (c) ] Any meeting called under any of the above methods shall be promptly brought to the attention of the board secretary or executive director in order to comply with all statutory requirements of public notice of a committee meeting.

(c) [ (d) ] The committee meetings and all committee business shall be conducted in accordance with Robert's Rules of Order Newly Revised, the Medical Practice Act Tex. Occ. Code Ann. Title 3 Subtitle B [ (Article 4495b) ], the Administrative Procedure [ and Texas Register ] Act Tex. Gov't Code Ann. Chapter 2001 [ (Article 6252-13a) ], and the Texas Open Meetings Act Tex. Gov't Code Ann. Chapter 551 [ (Article 6252-17) ] as and where each may be applicable and consistent with the statutorily confidential nature of the board's investigative files and a patient's right to privacy.

[(e) All elections and other issues requiring a vote of the committee shall be decided by a simple majority of the committee members present. A quorum for transaction of business by the committee shall be one more than half of the committee's membership at the time of the meeting.]

(d) [ (f) ] The board shall serve as the official custodian of records of each district review committee.

§191.4.Activities and Scope of Authority.

[(a) After appropriate orientation and training by the board and the disciplinary process review committee, one of the district review committees selected on a rotating basis shall, when requested by the executive director, meet in a location in Texas designated by the executive director to review multiple liability claim files and make recommendations for each respective investigative file to the board or the board's investigative staff as may be appropriate and applicable.]

(a) [ (b) ] Each district review committee member will endeavor to be reasonably available to act as a resource person for board investigators in the event an investigator needs assistance from the committee member.

(b) [ (c) ] Upon the written request of the board, the executive director, or the secretary-treasurer of the board and upon a committee member's availability and willingness to do so, committee members may on occasion be requested to serve as a public information representative of the board. Information delivered at these events by representatives of the board shall be factual, consistent with expressed board policy, and shall not be personal opinions or viewpoints. No committee or member of a committee, including its chairman, shall make or cause to be published any public statement representing such to be the official position or policy of the board unless such position or policy has been adopted or expressed by the board, nor make nor cause to be published any statement or policy statement regarding the committee's findings, recommendations, opinions, or conclusions.

(c) [ (d) ] After appropriate orientation and training by the board and the disciplinary process review committee, one of the committees, selected on a rotating basis, may be requested to review selected investigative files for evaluation of medical practice or professional competency and make recommendations for each investigative file to the board or to the board's investigative staff, as may be appropriate and applicable.

(d) [ (e) ] After appropriate orientation and training by the board and the disciplinary process review committee, district review committee members may on occasion be requested by the executive director to participate in informal settlement conferences, probationary panels, or perform other duties as may be assigned to committees or committee members. Pursuant to Chapter 187 of this title, (relating to Procedural Rules [ Procedure ]), the committee member shall make recommendations for each investigative file [ to the executive director in instances where he or she believes a violation of the Medical Practice Act has occurred, and to the disciplinary process review committee in instances where he or she believes there was no violation of the Medical Practice Act ].

§191.5.Per Diem and Expenses.

Each district review committee [ and ] member shall not incur or cause to be incurred any travel expenses, per diem expenses, or other expenses for which the board may be responsible for payment or reimbursement unless such expenses are approved in advance by the executive director or are incurred at the request of the executive director.

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 December 20, 2002.

TRD-200208467

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: February 2, 2003

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


Chapter 193. STANDING DELEGATION ORDERS

22 TAC §193.6

The Texas State Board of Medical Examiners proposes an amendment to §193.6, concerning standing delegation orders. The amendment regards supervision waiver requests.

Michele Shackelford, General Counsel, 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 the rule as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendment as proposed are in effect the public benefit anticipated as a result of enforcing the section will be an updated rule for physician assistants regarding waiver requests. There will be no effect on small or micro businesses.

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 authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

The following are affected by the proposed amendment: Texas Occupations Code Annotated, Chapter 157, Subchapter B.

§193.6.Delegation of the Carrying Out or Signing of Prescription Drug Orders to Physician Assistants and Advanced Practice Nurses.

(a) - (h) (No change.)

(i) Waivers.

(1) (No change.)

(2) The board may grant a waiver under subsection (1) if the board determines that:

(A) - (B) (No change.)

(C) if the requirement for which the waiver is sought is the amount of time the physician is on-site, the frequency and duration of time the physician is on-site when the advanced practice nurse or physician assistant is present is sufficient for collaboration to occur, taking into consideration the other ways the physician collaborates with the advanced practice nurse or physician assistant at other sites.

(3) - (4) (No change.)

(j) - (m) (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 December 20, 2002.

TRD-200208468

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: February 2, 2003

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