Part 1. DEPARTMENT OF STATE HEALTH SERVICES
Chapter 37. MATERNAL AND INFANT HEALTH SERVICES
Subchapter Q. REPORTING, TREATMENT AND INVESTIGATION OF CHILD BLOOD LEAD LEVELS
The Executive Commissioner of the Health and Human Services Commission on behalf of the Department of State Health Services (department) proposes amendments to §§37.331 - 37.336 and new §§37.337 - 37.339, concerning the reporting and control of child lead poisoning.
BACKGROUND AND PURPOSE
The rules as proposed are necessary to comply with the Texas Health and Safety Code, Chapter 88, which requires the department to adopt rules concerning the reporting and control of childhood lead poisoning.
Government Code §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The department has reviewed §§37.331 - 37.336 and has determined that reasons for adopting these sections are still valid and, therefore, these rules on childhood lead poisoning are still necessary. New §§37.337 - 37.339 were added because of amendments to the Texas Health and Safety Code, Chapter 88, by the 80th Texas Legislature, 2007.
SECTION-BY-SECTION SUMMARY
The amendments to §37.331 update legacy agency names and organizational structure to reflect the post-consolidation operations of the department and the Health and Human Services Commission. Amendments to §37.332 add new definitions and delete definitions no longer referenced in text. Amendments to §37.333 add text stating that confidential information provided to the department is in pursuant to the Texas Health and Safety Code, Chapter 88, §88.002. Amendments to §37.334 update information required for the registry of children's blood lead test results. Section 37.335 was amended to state "any facility in which a laboratory conducts blood lead testing." Amendments to §37.336 update legacy agency names, delete reporting of blood lead level results to the local health authority, and change the preferred method of reporting to electronic transmission. New §37.337, §37.338, and §37.339 were added to define the criteria and procedures for follow up care and environmental lead investigations pursuant to the Texas Health and Safety Code, §88.007, §88.008 and §88.009.
FISCAL NOTE
Casey S. Blass, Director, Disease Prevention and Intervention Section, has determined that for each year of the first five-year period that the sections are in effect, there will be no fiscal implications to the state or local governments as a result of enforcing or administering the sections as proposed.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Mr. Blass has determined that there will be no effect on small businesses or micro-businesses or persons who are required to comply with the sections as proposed because their business practices will not be altered. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
In addition, Mr. Blass has also determined that for each year of the first five years the sections are in effect, the public will benefit from the sections as proposed in that they update agency names, reflect changes to organizational structure, and changes to operating procedures to eliminate possible confusion caused by outdated information in the rules.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined as a rule in which the specific intent is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
TAKING IMPACT ASSESSMENT
The department has determined that the proposed rules do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Teresa Willis, Texas Childhood Lead Poisoning Prevention Program, Department of State Health Services, 1100 W 49th Street, Austin, Texas 78756, (512) 458-7269, extension 6318 or by email to teresa.willis@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The proposed rules are authorized by the Health and Safety Code, §88.003, which requires rules on reporting childhood blood lead levels of concern; and §88.007 which allows rules on follow up care for children with elevated blood lead levels; and Government Code, §531.0055, and the Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001. Review of the rules implements Government Code, §2001.039.
The proposed rules affect the Health and Safety Code, Chapters 88 and 1001; and Government Code, Chapters 531 and 2001.
§37.331.Purpose.
The purpose of these sections is to implement the provisions of
Texas
[
Acts 1995, 74th Legislature, Chapter 965, adding Chapter 88 to the
] Health and Safety Code
, Chapter 88
which provides the
Executive Commissioner of the Health and Human Services Commission
[
Texas Board of Health
]
with the authority to adopt rules relating to the reporting of
child blood
[
childhood
] lead levels and control of elevated
blood lead levels in children through an understanding of the prevalence
and nature of the problem of childhood lead poisoning in Texas.
§37.332.Definitions.
The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Certified lead risk assessor--A person certified by the department to conduct lead risk assessments, inspections, and lead-hazard screens, as defined by Subchapter I, Texas Environmental Lead Reduction, in Chapter 295 of this title concerning Occupational Health.
[
(1)
Blood lead level of concern--Presence
of blood lead concentrations suspected to be associated with mental
and physical disorders due to absorption, ingestion, or inhalation
of lead as specified in the most recent criteria issued by the United
States Department of Health and Human Services, United States Public
Health Service, Centers for Disease Control and Prevention (CDC).
]
(2) - (3) (No change.)
(4) Child-occupied facility--A building or part of a building, including a day-care center, preschool, or kindergarten classroom, that is visited regularly by the same child, six years of age or younger, at least two days in any calendar week if the visits are for at least:
(A) three hours each day; and
(B) 60 hours each year.
[
(4)
Commissioner--The Commissioner of the Texas Department of Health.
]
(5) Coordination of care--Includes overseeing that needed care is provided, including medical follow-up as defined under the most recent criteria issued by the Centers for Disease Control and Prevention of the United States Public Health Service.
(6)
[
(5)
] Department--The [
Texas
] Department of
State
Health
Services
.
(7) Environmental lead investigation--An investigation performed by a certified lead risk assessor of the home environment of, or other premises frequented by, a child who has a confirmed elevated blood lead level warranting such an investigation, under the most recent criteria issued by the Centers for Disease Control and Prevention of the United States Public Health Service.
(8) Executive Commissioner--The Executive Commissioner of the Health and Human Services Commission.
(9) Follow-up care--Medical management includes follow-up blood lead testing at the suggested frequency under the most recent criteria issued by the Centers for Disease Control and Prevention of the United States Public Health Service.
(10)
[
(6)
] Health authority--A
physician appointed as such under Texas Health and Safety Code, Chapter 121.
(11)
[
(7)
] Health professional--An individual whose:
(A) vocation or profession is directly or indirectly related to the maintenance of health in another individual; and
(B) duties require a specified amount of formal education and may require a special examination, certification or license, or membership in a regional or national association.
(12) Lead hazard--An item, surface coating, or environmental media that contains or is contaminated with lead and, when ingested or inhaled, may cause exposures that contribute to elevated blood lead levels in children, including:
(A) an accessible painted surface or coating;
(B) an article for residential or consumer use;
(C) accessible soil and dust, including attic dust; and
(D) food, water, or remedies.
(13)
[
(8)
] Lead--Metallic lead
and materials containing metallic lead with a potential for release
in sufficient concentrations to pose a threat to public health.
(14)
[
(9)
] Lead poisoning--Presence
of a confirmed venous blood level established by [
board
]
rule in the range specified for medical evaluation and possible pharmacologic
treatment in the most recent criteria issued by the [
United States Department of Health and Human Services,
] United States Public
Health Service, Centers for Disease Control and Prevention (CDC).
[
The current level recommended by the CDC is a blood lead concentration
of 20 micrograms of lead per deciliter of blood or greater.
]
(15)
[
(10)
] Local health department--A
department created under the Texas Health and Safety Code, Chapter 121.
(16)
[
(11)
] Physician--A person licensed to practice medicine by the Texas
Medical Board
[
State Board of Medical Examiners
].
[
(12)
Public health district--A district
created under the Texas Health and Safety Code, Chapter 121.
]
(17)
[
(13)
] Regional director--A physician appointed [
by the board
] as the chief administrative
officer of a public health region under the Texas Health and Safety
Code, Chapter 121.
§37.333.Confidentiality of Information Provided to the Department.
(a)
Pursuant to the Texas Health and Safety Code,
Chapter 88, §88.002, all data obtained is for the confidential
use of the department and the persons or public or private entities
that the department determines are necessary to carry out the intent
of the Texas Health and Safety Code, Chapter 88, §88.002.
Reports, records, and other information collected by, or maintained by, or
provided to the [
Texas
] Department of
State
Health
Services
relating to children's reports of blood lead testing
are not public information under open records law and may not be released
or made public on subpoena or otherwise, except as described in subsection
(b) of this section.
(b) (No change.)
(c) Limited release of the data is allowed by the Texas Health and Safety Code, §88.002.
(d) Any requests for confidential or statistical data shall be made in accordance with Texas Health and Safety Code, §88.002.
§37.334.Reportable Health Condition.
(a) All blood lead levels in children 14 years of age or younger
shall be
[
are
] reportable to the
[
Texas
] Department of
State
Health
Services
(department).
Elevated blood lead levels for individuals over 14 years of age shall
be reported in accordance with Chapter 99 of this title (relating
to Occupational Condition Reporting).
(b) (No change.)
(c) Reports shall include all information as required on the Texas Child Blood Lead Level Report Form, Publication #F09-11709, which can be found at http://www.dshs.state.tx.us/lead, or by calling 1-800-588-1248.
[
(c)
In order for a child to be included
in the registry, the following information must be available:
]
[
(1)
the child's name, age or date of birth, and gender; and
]
[
(2)
the blood lead level and test date.
]
§37.335.Persons Required to Report.
(a) The following persons are required to report all blood lead results:
(1) (No change.)
(2) the person in charge of:
(A) - (B) (No change.)
(C)
any
[
a
] facility in which a laboratory conducts blood lead testing.
(b) (No change.)
§37.336.Reporting Procedures.
(a) The reporting physician, laboratory director, or
alternate person as set forth in §37.335(b) of this title (relating
to Persons Required to Report) shall make the report of the
child
[
childhood
] blood lead level results [
in writing
]
to [
the local health authority or
] the [
Texas
]
Department of
State
Health
Services
(department) immediately after receiving the blood lead test result.
The
[
A local health authority or the
] department may authorize one or more employees [
under his or her supervision
] to receive
the report from the physician, laboratory director, or alternate person
by telephone
or fax
. The [
local health authority or the
] department shall implement a method for verifying the identity
of the telephone caller when that person is unfamiliar to the employee.
(b)
[
The local health authority shall collect
the reports and transmit the information at weekly intervals to the
Texas Department of Health, Bureau of Epidemiology.
] Transmission
also
may be made by mail, courier, or electronic transfer.
(1) If by mail or courier, the reports shall be placed
in a sealed envelope addressed to the attention of the [
Texas
]
Department of
State
Health
Services, Childhood Lead Poisoning Prevention Program
[
, Bureau of Epidemiology,
]
and marked "confidential medical records."
(2) (No change.)
[
(c)
When a child with a blood lead
result resides outside the local health jurisdiction that received
the report, the local health authority shall notify the appropriate
local health authority or public health region where the child or
children reside. The department shall assist the local health authority
in providing such notifications if requested. The receiving local
health authority shall collect the reports and transmit the information
at weekly intervals to the department.
]
(c)
[
(d)
] Blood lead levels
of 40 micrograms per deciliter or greater shall be reported immediately by
fax or
telephone to [
the local health authority or
] the department at (800) 588-1248
or fax to (512) 458-7699
.
Reports shall include all information as required on the Texas Child
Blood Lead Level Report Form, Publication #F09-11709.
The following information shall be reported:
(1) the child's name, address, date of birth or age, sex, race and ethnicity;
(2) the child's blood lead level concentration, test date, and name and telephone number of the testing laboratory;
(3) whether the sample is capillary or venous blood; and
(4) the name and city of the attending physician.
§37.337.Department Rules for Follow-Up Care; Coordination of Care.
(a) Health care providers should follow the department's Form Pb-109, Physician Reference on Follow-up Testing and Coordination of Care, which may be obtained from the department's website http://www.dshs.state.tx.us/lead or by calling 1-800-588-1248, and meets the federal requirements for the recommended schedule for:
(1) obtaining a confirmatory diagnostic venous blood lead test sample; and
(2) providing early and late follow-up care and other activities.
(b) Environmental lead investigation, shall comply with the department's eligibility criteria for environmental lead investigation as prescribed in §37.339(a) of this title (relating to Environmental Lead Investigations Procedures).
(c) The investigator shall provide guidance to parents, guardians, and consulting physicians from lead-risk assessment reports on how to eliminate or control lead exposures that may be contributing to the child's blood lead level.
§37.338.Environmental Lead Investigations.
(a) To be eligible for an environmental lead investigation, the child's elevated blood lead level(s) must meet the most recent criteria for environmental investigation issued by the Centers for Disease Control and Prevention of the United States Public Health Service.
(b) The request for an environmental lead investigation shall be on the department's most current form, Pb-101, Request for Environmental Lead Investigation or equivalent. A current version of form Pb-101 may be obtained from the department's website at http://www.dshs.state.tx.us/lead, or by calling 1-800-588-1248. The completed form should be sent by FAX, ATTENTION: Environmental Specialist, using the fax number on the form.
(c) On receiving a report of a child with a confirmed blood lead level warranting an environmental lead investigation, the department or its authorized agent may conduct an environmental lead investigation, using Form Pb-103 (Elevated Blood Lead Level Investigation Questionnaire) or its equivalent, of:
(1) the home environment in which the child resides, or other premises frequented by a child, if the department or the department's authorized agent obtains the written consent of an adult occupant;
(2) any child-care facility with which the child has regular contact and that may be contributing to the child's blood lead level, if the department or the department's authorized agent obtains the written consent of the owner, operator, or principal of the facility; and
(3) any child-occupied facility with which the child has regular contact and that may be contributing to the child's blood lead levels, if the department or the department's authorized agent obtains the written consent of:
(A) the owner, operator, or principal of the facility; or
(B) an adult occupant of the facility if the facility is subject to a lease agreement.
(d) Written consent shall be on the department's form or equivalent meeting the requirements of the Texas Health and Safety Code, §161.011, §161.0211, and §161.0212.
(e) The lead risk assessor shall provide documented evidence when applicable, of all attempts made to receive consent for environmental lead investigation as required by subsection (c) of this section.
(f) If consent is denied, the investigator shall document the reason and circumstance for the denial, and measures that should be taken to protect the health of the child.
(g) Written consent is not required for an investigation for a child with a blood lead level of at least 45 micrograms per deciliter if a good faith attempt to contact the person authorized to provide written consent under subsection (e) of this section has been unsuccessful.
§37.339.Environmental Lead Investigations Procedures.
(a) Eligibility Criteria for Environmental Lead Investigation.
(1) The eligibility criteria for an environmental lead investigation shall be as stated on the department's Form Pb-101, Request for Environmental Lead Investigation or equivalent.
(2) A city, health district, or local health department may conduct an environmental lead investigation using lower elevated blood lead results than those in paragraph (1) of this subsection.
(3) Before conducting the investigation, city, health district, or local health department will:
(A) inform the health care provider of the intent to conduct the investigation; and
(B) submit to the department the most current Form Pb-101, Request for Environmental Lead Investigation or equivalent.
(b) Requesting an Environmental Lead Investigation.
(1) The request for an environmental lead investigation shall be, completed in its entirety, on the department's most current form Pb-101, Request for Environmental Lead Investigation or equivalent.
(2) The following persons may request an environmental lead investigation for a child meeting criteria in subsection (a) of this section:
(A) the child's attending healthcare provider;
(B) a public health nurse;
(C) local health department staff;
(D) local Childhood Lead Poisoning Prevention Program staff; or
(E) designated Texas Childhood Lead Poisoning Prevention Program staff.
(3) An environmental lead investigation request may be denied by the department if the eligibility criteria is not met.
(4) The department will notify the requestor of the reason for such denial.
(c) Conducting and Reporting an Environmental Lead Investigation.
(1) Only a person currently certified by the State of Texas as a lead risk assessor shall conduct an environmental lead investigation.
(2) The lead risk assessor shall conduct the investigation in accordance with the conditions and requirements of the certification by the department.
(3) The lead risk assessor shall provide a written report of each completed environmental lead investigation to the provider; parent or guardian; and homeowner or property owner.
(A) The written report shall contain at least the following from the investigation:
(i) date lead risk assessment was performed;
(ii) address where lead risk assessment was performed;
(iii) name and address of property owner;
(iv) date structure or unit was built;
(v) name of lead risk assessor, certification number, or business affiliation of the person that conducted the investigation;
(vi) testing methods used (e.g. X-ray fluorescence (XRF), what samples were collected, and name of the accredited laboratory that analyzed samples);
(vii) a general statement of the results;
(viii) a description of recommended interim controls and/or abatement options for each identified lead-based paint hazard;
(ix) a suggested prioritization for taking each action based on the immediacy and severity of the hazard; and
(x) if the risk assessor is recommending use of an encapsulant or enclosure, the report shall include maintenance and monitoring schedule for the encapsulant or enclosure.
(B) If the parent or guardian is not the owner of the property investigated, and the risk-assessor discovered lead-based paint hazards on the property; the lead risk assessor shall inform the property owner about the investigation findings, recommendations, and their legal obligation to disclose the same to all future tenants and buyers.
(4) The lead risk assessor conducting the investigation shall send a complete copy of the environmental lead investigation report to the department's Texas Childhood Lead Poisoning Prevention Program. The report shall consist of the following:
(A) a copy of the summary report letter sent to the healthcare provider, the parent, or guardian, and to the property owner, if applicable;
(B) a completed form Pb-103 (Elevated Blood Lead Level Investigation Questionnaire) or its equivalent;
(C) signed consent forms or records of consent denials; and
(D) results of all environmental sampling and testing performed.
(5) Confidentiality. The report shall be confidential as provided by the Texas Health and Safety Code, §161.0213.
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 February 25, 2008.
TRD-200801123
Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: April 6, 2008
For further information, please call: (512) 458-7111 x6972
25 TAC §§129.1, 129.2, 129.4, 129.5, 129.7 - 129.13
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Department of State Health Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), proposes the repeal of §§129.1, 129.2, 129.4, 129.5 and 129.7 - 129.13, concerning the voluntary registration and regulation of opticians.
BACKGROUND AND PURPOSE
The proposed repeals are necessary to consolidate existing Professional Licensing and Certification Unit program rules in 25 Texas Administrative Code (TAC), Chapter 140, Health Professions Regulation. The new rules transfer and update existing language, and do not impose any new requirements or fees on applicants or licensees. The new rules also clarify that one registration certificate, not two, will be issued to a dual registrant, and eliminate language permitting the "carryover" of hours from one continuing education period to the next.
SECTION-BY-SECTION SUMMARY
The repeal of §§129.1, 129.2, 129.4, 129.5 and 129.7 - 129.13 is necessary in order to combine the Professional Licensing and Certification Unit rules in one chapter, 25 TAC, Chapter 140, Health Professions Regulation.
FISCAL NOTE
Cindy Bourland, Manager, Professional Licensing and Certification Unit, has determined that for each year of the first five-year period that the sections are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the sections as proposed.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Bourland has also determined that there will be no effect on small businesses or micro-businesses required to comply with the sections as proposed. This determination was made because the repeals do not impose any new requirements. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
In addition, Ms. Bourland has also determined that for each year of the first five years the sections are in effect, the public will benefit from the adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections is to continue to ensure public health and safety through the voluntary registration and regulation of opticians.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the pubic health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The department has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Yvonne Feinleib, Program Director, Opticians Registry, Professional Licensing and Certification Unit, Division for Regulatory Services, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756, (512) 834-4521 or by email to Yvonne.Feinleib@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The proposed repeals are authorized by Occupations Code, Chapter 352, which authorizes the adoption of rules regarding the regulation of opticians; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
The proposed repeals affect the Occupations Code, Chapter 352; Health and Safety Code, Chapter 1001; and Government Code, Chapter 531.
§129.1.Purpose and Construction.
§129.2.Definitions.
§129.4.Fees.
§129.5.Application Procedures and Requirements for Registration.
§129.7.Issuance of Certificate of Registration.
§129.8.Renewal of Registration.
§129.9.Requirements for Continuing Education.
§129.10.Change of Name or Address.
§129.11.Violations, Complaints, Investigation of Complaints, and Disciplinary Actions.
§129.12.Registration of Applicants with Criminal Backgrounds.
§129.13.Professional and Ethical Standards.
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 February 22, 2008.
TRD-200801086
Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: April 6, 2008
For further information, please call: (512) 458-7111 x6972
Subchapter G. OPTICIANS
The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), proposes new §§140.275 - 140.285, concerning the voluntary registration and regulation of opticians.
BACKGROUND AND PURPOSE
The proposed repeal of 25 Texas Administrative Code (TAC), §§129.1, 129.2, 129.4, 129.5, and 129.7 - 129.13 is necessary to consolidate existing Professional Licensing and Certification Unit program rules in 25 Texas Administrative Code (TAC), Chapter 140, Health Professions Regulation. The new rules transfer and update existing language, and do not impose any new requirements or fees on applicants or licensees. The new rules also clarify that one registration certificate, not two, will be issued to a dual registrant, and eliminate language permitting the "carryover" of hours from one continuing education period to the next.
SECTION-BY-SECTION SUMMARY
New §140.275 sets forth purpose and scope of the rules. New §140.276 includes definitions for terms used within the rules. New §140.277 lists the fees required for application, registration, renewal, and issuance of a duplicate certificate. New §140.278 describes application procedures and qualifications for registration as an optician. New §140.279 covers procedures related to the issuance of a certificate of registration, including duplicate certificates, titles, and expiration date of an initial certificate. New §140.280 sets forth information concerning registration renewal and late renewal, including renewal procedures for a registration on active military duty. New §140.281 sets forth continuing education requirements. New §140.282 sets forth procedures for a change of name or address. New §140.283 sets out violations, procedures concerning complaints and investigations, and actions the department may take against a person when violations have occurred. New §140.284 sets out the guidelines and criteria on the eligibility of persons with criminal backgrounds to obtain registration. New §140.285 details professional and ethical standards, including standards related to advertising by a registrant.
FISCAL NOTE
Cindy Bourland, Manager, Professional Licensing and Certification Unit, has determined that for each year of the first five-year period that the sections are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the sections as proposed.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Bourland has also determined that there will be no effect on small businesses or micro-businesses required to comply with the sections as proposed. This determination was made because the new rules do not impose any new requirements. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
In addition, Ms. Bourland has also determined that for each year of the first five years the sections are in effect, the public will benefit from the adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections is to continue to ensure public health and safety through the voluntary registration and regulation of opticians.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the pubic health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The department has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Yvonne Feinleib, Program Director, Opticians Registry, Professional Licensing and Certification Unit, Division for Regulatory Services, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756, (512) 834-4521 or by email to Yvonne.Feinleib@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The proposed new rules are authorized by Occupations Code, Chapter 352, which authorizes the adoption of rules regarding the regulation of opticians; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
The proposed new rules affect the Occupations Code, Chapter 352; Health and Safety Code, Chapter 1001; and Government Code, Chapter 531.
§140.275.Purpose and Construction.
(a) Purpose. This subchapter implements the provisions of the Opticians' Registry Act, Texas Occupations Code, Chapter 352, concerning the voluntary registration and regulation of dispensing opticians by providing a means by which the public can identify registered providers of ophthalmic dispensing services and products that meet minimum standards of competence.
(b) Construction. These sections cover definitions; fees; application procedures and requirements; issuance of a certificate of registration; renewal of registration; requirements for continuing education; changes of name or address; procedures for violations, complaints, investigation of complaints, and disciplinary actions; registration of applicants with criminal backgrounds; and professional and ethical standards.
§140.276.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Act--The Opticians' Registry Act (Act), Texas Occupations Code, Chapter 352.
(2) Applicant--A person who applies for registration under the Act.
(3) Commissioner--The commissioner of the Department of State Health Services.
(4) Consumer--An individual receiving services or obtaining a product from a registered dispensing optician.
(5) Contact lens dispensing--The fabrication, ordering, mechanical adjustment, dispensing, sale, and delivery to the consumer of contact lenses prescribed by and dispensed in accordance with a prescription from a licensed physician or optometrist, together with appropriate instructions for the care and handling of the lenses. The term does not include the taking of any measurements of the eye or the cornea or evaluating the physical fit of the contact lenses, unless that action is directed or approved by a licensed physician.
(6) Contact lens prescription--A written specification by a licensed physician or optometrist for therapeutic, corrective, or cosmetic contact lenses that states the refractive power of the product and other information as required by:
(A) the physician or the Texas Medical Board; or
(B) the optometrist or the Texas Optometry Board.
(7) Department--The Department of State Health Services.
(8) Dispensing optician--A person who provides or offers to provide spectacle or contact lens dispensing services or products to the public.
(9) Dual application--An application by one person as both a registered spectacle dispensing optician and a registered contact lens dispenser.
(10) Examination--A qualifying test administered to eligible applicants by the department or its designee.
(11) Executive Commissioner--The Executive Commissioner of the Health and Human Services Commission.
(12) Registered contact lens dispenser--A person properly registered under the Act as a contact lens dispenser.
(13) Registered spectacle dispensing optician--A person properly registered under the Act as a spectacle dispensing optician.
(14) Registration certificate--A document issued by the department to a qualified person authorizing that person to represent that he or she is registered under the Act.
(15) Spectacle dispensing--The design, verification, fitting, adjustment, sale, and delivery to the consumer of fabricated and finished spectacle lenses, frames, or other ophthalmic devices, other than contact lenses, prescribed by and dispensed in accordance with a prescription from a licensed physician or optometrist. The term includes:
(A) prescription analysis and interpretation;
(B) the taking of measurements of the face, including interpupillary distances, to determine the size, shape, and specification of the spectacle lenses or frames best suited to the wearer's needs;
(C) the preparation and delivery of work orders to laboratory technicians engaged in grinding lenses and fabricating spectacles;
(D) the verification of the quality of finished spectacle lenses;
(E) the adjustment of spectacle lenses or frames to the intended wearer's face; and
(F) the adjustment, repair, replacement, reproduction, or duplication of previously prepared spectacle lenses, frames, or other specially fabricated optical devices, other than contact lenses.
(16) Spectacle prescription--A written specification by a licensed physician or optometrist for therapeutic or corrective lenses that states the refractive power of the product and other information as required by the physician or optometrist.
§140.277.Fees.
(a) Schedule of fees. The fees are as follows:
(1) initial application and registration fee for a registration issued for two years--$100;
(2) initial dual application and registration fee for a registration issued for two years--$160;
(3) registration renewal fee;
(A) for a registration issued for two years--$100;
(B) for a retired optician registration issued for two years--$50;
(4) dual registration renewal fee;
(A) for a registration issued for two years--$160;
(B) for a retired optician registration issued for two years--$80;
(5) late registration fee--a fee that is one and one-half times the registration renewal fee if renewed within 90 days of expiration or a fee that is two times the registration renewal fee if renewed more than 90 days but less than one year after expiration;
(6) duplicate certificate fee--$20; and
(7) examination fee--the then current fee assessed by the Department of State Health Services' (department's) designee for the examination.
(b) Payment of fees. If paid by mail, all fees shall be submitted in the form of a personal check, certified check for guaranteed funds or a money order made payable to the Department of State Health Services. If submitted in person, cash may be accepted by the department's cashier.
(c) Nonrefundable fees. All fees submitted to the department are nonrefundable.
(d) For all applications and renewal applications, the department is authorized to collect fees to fund the Office of Patient Protection, Health Professions Council, as mandated by law.
(e) For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.
§140.278.Application Procedures and Requirements for Registration.
(a) Purpose. The purpose of this section is to set out the application procedures and requirements for registration.
(b) General.
(1) Unless otherwise indicated, an applicant must submit all required information and documentation of credentials on official Department of State Health Services (department) forms.
(2) Applications may be submitted for registration as a registered contact lens dispenser, a registered spectacle dispensing optician, or both.
(3) The department will not consider an application as officially submitted until the applicant pays the application fee. The fee must accompany the application form.
(4) An application not completed within 30 days after the date of the department's notice of deficiency may be voided.
(c) Required application materials.
(1) The application form shall contain:
(A) specific information regarding personal data, social security number, birth month and day, place of employment, preferred mailing address and telephone number, other registrations and licenses held, misdemeanor and felony convictions, educational and training background, and work experience;
(B) a statement that the applicant has read the Opticians' Registry Act (Act) and this subchapter and agrees to abide by them;
(C) a statement that the applicant shall return to the department any registration certificate(s) or identification card(s) upon the expiration, revocation, or suspension of the registration;
(D) a statement that the applicant understands that fees submitted in the registration process are nonrefundable unless the processing time is exceeded without good cause as set out in subsection (f) of this section;
(E) a statement that the applicant understands that materials submitted in the registration process become the property of the department and are not returnable;
(F) a statement that the information in the application is truthful and that the applicant understands that providing false and misleading information on items which are material in determining the applicant's qualifications may result in the voiding of the application, the failure to be granted any registration, or the revocation of any registration issued;
(G) the signature of the applicant which has been dated; and
(H) a statement that if issued a registration certificate, the registrant shall keep the department advised of his or her current mailing address.
(2) An applicant shall submit documentation satisfactory to the department that he or she has completed five classroom hours.
(A) The hours must have been completed within three years prior to the date of the application.
(B) The hours must be offered or approved by the American Board of Opticianry or the National Contact Lens Examiners.
(C) If applying for dual registration, the applicant must have completed 10 classroom hours offered or approved by the American Board of Opticianry or the National Contact Lens Examiners.
(D) Documentation may include a transcript, diploma, certificate, or other official or certified document.
(3) Proof of having passed the prescribed examination shall be attached to the application form.
(d) Examinations.
(1) The examination administered by the American Board of Opticianry, or its successor, is the examination for registered spectacle dispensing opticians.
(2) The examination administered by the National Contact Lens Examiners, or its successor, is the examination for registered contact lens dispensers.
(e) Determining eligibility. The department shall receive and approve or disapprove all applications for registration as registered spectacle dispensing opticians or registered contact lens dispensers or both.
(1) Notices of application approval, disapproval or deficiency shall be in accordance with subsection (f) of this section.
(2) An application for a registration shall be disapproved if the applicant has:
(A) not met the requirements in this section;
(B) failed to or refused to properly complete or submit any application form, endorsement, or fee or deliberately presented false information on any form or document required by the department;
(C) violated any provision of the Act or this subchapter;
(D) been convicted of a felony or misdemeanor as set out in §140.284 of this title (relating to Registration of Applicants with Criminal Backgrounds); or
(E) violated any provision of state law relating to the practice of dispensing opticians.
(3) If after review, the department determines that the application should not be approved, the department shall give the applicant written notice of the reason for the proposed decision and of the opportunity for a formal hearing. The notice shall be in accordance with §140.283 of this title (relating to Violations, Complaints, Investigation of Complaints, and Disciplinary Actions).
(f) Application processing.
(1) Time periods. The department shall comply with the following procedures in processing applications for registration and renewal.
(A) The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The time periods are as follows:
(i) letter of acceptance of application for registration--20 working days;
(ii) letter of application or renewal deficiency--20 working days; and
(iii) issuance of registration renewal--10 working days.
(B) The following periods of time shall apply from the receipt of the last item necessary to complete the application until the date of issuance of written notice approving or denying the application. The time periods for denial include notification of the proposed decision and of the opportunity, if required, to show compliance with the law and of the opportunity for a formal hearing. An application is not considered complete until the required examination has been successfully completed by the applicant. The time periods are as follows:
(i) letter of approval for examination--20 working days;
(ii) initial letter of approval for registration--30 days;
(iii) letter of denial of registration--30 days; and
(iv) issuance of registration renewal--10 working days.
(2) Reimbursement of fees.
(A) In the event an application is not processed in the time periods stated in this subsection, the applicant has the right to request reimbursement of all fees paid in that particular application process. Application for reimbursement shall be made to the department. If the department does not agree that the time period has been violated or finds that good cause existed for exceeding the time period, the request will be denied.
(B) Good cause for exceeding the time period is considered to exist if the number of applications for registration and registration renewal exceeds by 15% or more the number of applications processed in the same calendar quarter the preceding year; another public or private entity relied upon by the department in the application process caused the delay; or any other condition exists giving the department good cause for exceeding the time period.
(3) Appeal. If a request for reimbursement is denied by the department, the applicant may appeal to the commissioner of the department for a timely resolution of any dispute arising from a violation of the time periods. The applicant shall give written notice to the commissioner at the address of the department that he or she requests full reimbursement of all fees paid because his or her application was not processed within the applicable time period. The department shall submit a written report of the facts related to the processing of the application and of any good cause for exceeding the applicable time period. The commissioner shall provide written notice of the commissioner's decision to the applicant. An appeal shall be decided in the applicant's favor if the applicable time period was exceeded and good cause was not established. If the appeal is decided in favor of the applicant, full reimbursement of all fees paid in that particular application process shall be made.
(4) Contested cases. The time periods for contested cases related to the denial of registration or registration renewals are not included within the time periods stated in this subsection. The time period for conducting a contested case hearing runs from the date the department receives a written request for a hearing and ends when the decision of the department is final and appealable. A hearing may be completed within one to four months, but may extend for a long period of time depending on the particular circumstances of the hearing.
§140.279.Issuance of Certificate of Registration.
(a) Issuance of certificate. The Department of State Health Services (department) shall issue a certificate of registration and a registration identification card containing a registration number and expiration date to each qualified applicant.
(b) Certificate and identification card. Any certificate of registration or identification card issued remains the property of the department and shall be surrendered on demand of the department.
(c) Display of certificate. The certificate shall be displayed in a prominent location in the primary office or place of employment of the registrant. A current identification card shall be carried by the registrant.
(d) Reproduced or altered certificates/cards. The certificate or identification card shall not be reproduced or altered in any manner.
(e) Duplicate replacement certificates. Duplicate replacement certificates will be issued by the department upon written request from a registrant and payment of the appropriate duplicate certificate fee. The request shall include a statement detailing the loss or destruction of the original certificate or identification card or be accompanied by the damaged certificate or card.
(f) Individual or dual registration. A certificate of registration shall be issued for a contact lens dispenser or a spectacle dispensing optician. In the event an individual is registered as a contact lens dispenser and a spectacle dispensing optician, he or she shall be issued one certificate which lists both titles.
(g) Titles.
(1) A registered spectacle dispensing optician may refer to himself or herself as a registered dispensing optician, a registered spectacle dispenser, or a registered spectacle dispensing optician.
(2) A registered contact lens dispenser may refer to himself or herself as a registered contact lens technician or a registered contact lens dispenser.
(3) A registrant may not use abbreviations or other letters to represent that the person is registered.
(h) Expiration of initial registration. The initial registration certificate is valid through the registrant's next birth month for a term of up to two years.
§140.280.Renewal of Registration.
(a) Purpose. The purpose of this section is to establish the rules governing renewal of registration certificates.
(b) General.
(1) When issued, a registration certificate is valid through the registrant's next birth month for a two-year term, as determined by the department.
(2) A registrant must renew the registration certificate in order to remain registered.
(3) Each registrant is responsible for renewing the registration certificate before the expiration date indicated on the face of the certificate and shall not be excused from paying the late registration fee. Failure to receive notification from the Department of State Health Services (department) prior to the expiration date of the registration certificate will not excuse failure to apply for renewal or late renewal.
(4) The department will not renew the registration of a registrant who is in violation of the Opticians' Registry Act (Act) or this subchapter at the time of application for renewal.
(5) The department shall not renew a registration if renewal is prohibited by the Education Code, §57.491 (relating to Loan Default Ground for Nonrenewal of Professional or Occupational License).
(6) The department shall not renew a registration if renewal is prohibited by a court order or attorney general's order issued pursuant to the Family Code, Chapter 232 (Suspension of License for Failure to Pay Child Support), as set out in §1.301 of this title (relating to Suspension of License for Failure To Pay Child Support).
(7) Notices of renewal approval, disapproval, or deficiency shall be in accordance with §140.278(f) of this title (relating to Application Procedures and Requirements for Registration).
(c) Registration renewal.
(1) At least 30 days prior to the expiration date of a person's registration, the department will send notice to the registrant at the address in the department's records of the expiration date of the registration and the total renewal fee, the continuing education report form, and the renewal form.
(2) The renewal form for each registrant shall require the provision of the preferred mailing address, primary employment address and telephone number, and a statement of all misdemeanor and felony offenses for which the registrant has been convicted.
(3) A registrant has submitted all renewal application materials when the registrant has mailed the renewal form, the required renewal fee, and the continuing education report form to the department prior to the expiration date of the registration. The postmark date shall be considered as the date of mailing.
(4) The department shall issue to a registrant who has met all requirements for renewal a renewed registration certificate and identification card.
(5) Each registrant is responsible for renewing the registration before the expiration date and shall not be excused from paying the late registration fee. Failure to receive notification from the department prior to the expiration date of the registration shall not excuse failure to apply for renewal or late renewal.
(d) Late renewal.
(1) The department shall inform a person who has not renewed a registration within 30 days following the expiration of the registration of the amount of the late registration fee required for renewal and the date the registration expired.
(2) A person whose registration has expired for not more than 90 days may renew the registration by submitting to the department the registration renewal form, the completed continuing education report form, and the late registration fee. A person whose registration has expired more than 90 days but less than one year may renew the registration by submitting to the department the registration renewal form, the completed continuing education report form, and a late registration fee.
(3) A person whose registration has been expired for more than one year may not renew. The person may obtain a new registration by complying with the then current requirements and procedures for obtaining a registration.
(4) If a registrant fails to timely renew his or her registration because the registrant is or was on active duty with the armed forces of the United States of America serving outside the State of Texas, the registrant may renew the registration pursuant to this paragraph.
(A) Renewal of the registration may be requested by the registrant, the registrant's spouse, or an individual having power of attorney from the registrant. The renewal form shall include a current address and telephone number for the individual requesting the renewal.
(B) Renewal may be requested before or after expiration of the registration.
(C) A copy of the official orders or other official military documentation showing that the registrant is or was on active duty serving outside the State of Texas shall be filed with the department along with the renewal form.
(D) A copy of the power of attorney from the registrant shall be filed with the department along with the renewal form if the individual having the power of attorney executes any of the documents required in this paragraph.
(E) A registrant renewing under this paragraph shall pay the renewal fee, but not the late registration fee.
(F) A registrant renewing under this paragraph shall not be required to submit any continuing education hours if continuing education is required to be shown for the renewal.
(e) Expiration of registration. A person whose registration has expired may not refer to himself or herself by any of the titles listed in §140.279(g) of this title (relating to Issuance of Certificate of Registration).
(f) A retired registrant who wishes to use the titles authorized by §140.279(g) of this title, only in the provision of voluntary charity care, may renew the registration every two years by submitting the renewal form and the retired optician registration renewal fee in accordance with the renewal procedures described in this section. Voluntary charity care means engaging in the practice of contact lens dispensing and/or spectacle dispensing at no cost to the consumer.
§140.281.Requirements for Continuing Education.
(a) Purpose. The purpose of this section is to establish the continuing education requirements a registrant shall meet to maintain registration. The requirements are intended to maintain and improve the quality of services provided to the public by registered spectacle dispensing opticians and registered contact lens dispensers. Continuing education credit includes programs beyond the basic preparation which are designed to promote and enrich knowledge, improve skills, and develop attitudes for the enhancement of dispensing opticians, thus improving health care to the public. The Department of State Health Services (department) assumes dispensing opticians will maintain the high standards of the profession in selecting quality educational programs to fulfill the continuing education requirements.
(b) Number of hours required. Proof of having earned ten contact hours of continuing education credit in each area for which the registrant is renewing shall be required at the time of renewal for each registration issued for a two-year term. A contact hour is 50 minutes.
(1) The hours must have been completed within 24 months prior to the date of expiration of a registration issued for a two-year term.
(2) For a registered spectacle dispensing optician the hours must be offered or approved by the American Board of Opticianry. For a registered contact lens dispenser the hours must be offered or approved by the National Contact Lens Examiners.
(3) If applying for dual registration renewal the applicant must have a total of 20 contact hours of continuing education for a registration issued for a two-year term. Half of the contact hours must be offered or approved by the American Board of Opticianry and half of the contact hours must be offered or approved by the National Contact Lens Examiners.
(c) Records. The registrant shall be responsible for maintaining a record of his or her continuing education experiences. The certificates, diplomas, or other documentation verifying earning of the continuing education hours are not to be forwarded to the department at the time of renewal unless the registrant has been selected for audit by the department. Only the completed continuing education report form should accompany the renewal form and fee if the registrant has not been selected for audit.
(d) Audit process.
(1) The department shall select for audit a random sample of registrants for each renewal month. Audit forms shall be sent to the selected registrants at the time the renewal notice is mailed.
(2) All registrants selected for audit will furnish documentation such as official transcripts, certificates, diplomas, receipts, agendas, programs, or an affidavit identifying the continuing education experience satisfactory to the department, to verify proof of having earned the continuing education hours listed on the continuing education report form. The documentation must be provided at the time the renewal form is returned to the department.
(3) Failure to timely furnish this information or knowingly providing false information in the audit process or during the renewal process are grounds for suspension or revocation of the registration.
(e) Reduced hours required for retired opticians providing voluntary charity care. A retired registered optician renewing under §140.280(f) of this title (relating to Renewal of Registration) is required to complete one-half of the hours regularly required for registration renewal.
§140.282.Change of Name or Address.
(a) The purpose of this section is to set out the responsibilities and procedures for name and address changes.
(b) The registrant shall notify the Department of State Health Services (department) of changes in name, preferred mailing address, or place of business or employment within 30 days of such change.
(c) Before any new registration certificate or identification card will be issued by the department, notification of a name change must be forwarded to the department and shall include a copy of a marriage certificate, court decree evidencing such change, or a social security card reflecting the new name.
(d) The registrant shall return any previously issued certificate or identification card and remit the appropriate replacement fee as set out in §140.277 of this title (relating to Fees).
§140.283.Violations, Complaints, Investigation of Complaints, and Disciplinary Actions.
(a) Purpose. The purpose of this section is to set out:
(1) procedures concerning complaints alleging violations of the Act or this subchapter; and
(2) Department of State Health Services (department) actions against a person when violations have occurred.
(b) Compliance with the Act. A registrant or applicant must comply with the Act and this subchapter.
(c) Filing of complaints.
(1) Any person may complain to the department alleging that a registered dispensing optician or another person has violated the Act or this subchapter.
(2) A person wishing to file a complaint against a registered dispensing optician or another person shall notify the department. The initial notification of a complaint may be in writing, by telephone, or by personal visit to the department's office. The mailing address is Opticians' Registry, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756-3183.
(3) Upon receipt of a complaint, the department shall send to the complainant an acknowledgment letter and the department's complaint form, which the complainant must complete and return to the department before further action can be taken. If the complaint is made by a visit to the department's office, the form may be given to the complainant at that time; however, it must be completed and returned to the department before further action can be taken.
(4) Anonymous complaints may be accepted by the department if the complainant provides sufficient information.
(d) Investigation of complaints.
(1) The department may investigate any complaint.
(2) If the department determines that the complaint does not come within the department's jurisdiction, the department shall advise the complainant and, if possible, refer the complainant to the appropriate governmental agency for handling such a complaint.
(3) The department shall, at least as frequently as quarterly, notify the parties to the complaint of the status of the complaint until its final disposition.
(4) If the department determines that there are insufficient grounds to support the complaint, the department shall dismiss the complaint and give written notice of the dismissal to the registrant or person against whom the complaint has been filed and to the complainant.
(5) If the department determines that there are sufficient grounds to support the complaint, the department may propose to deny, suspend, revoke, probate, or not renew a registration.
(6) If an investigation is done, the investigator shall always attempt to contact the complainant to discuss the complaint.
(e) Disciplinary actions.
(1) The department may deny an application or registration renewal or suspend or revoke a registration or impose probation or administrative penalties for any violation of the Act or this subchapter.
(2) Prior to institution of formal proceedings to revoke or suspend a registration, the department shall give written notice to the registrant of the facts or conduct alleged to warrant revocation or suspension, and the registrant shall be given an opportunity, as described in the notice, to show compliance with all requirements of the Act and this subchapter.
(3) If denial, revocation, suspension, or probation of a registration is proposed, the department shall give written notice to the registrant or applicant that the applicant or registrant must request, in writing, a formal hearing within 10 days of receipt of the notice. The notice shall state the basis for the proposed action. Receipt of the notice is presumed to occur on the 10th day after the notice is mailed to the last address known to the department unless another date is reflected on a United States Postal Service return receipt.
(4) If no timely request for a hearing is received, the applicant or registrant is deemed to have waived the hearing and be in agreement with the allegations and proposed action.
(5) The formal hearing shall be conducted in accordance with the Administrative Procedure Act, Government Code, Chapter 2001 and §140.284 of this title (relating to Registration of Applicants With Criminal Backgrounds), if applicable.
(6) If the applicant or registrant fails to appear or be represented at the scheduled hearing, the person is deemed to be in agreement with the allegations and proposed action and to have waived the right to a hearing.
(7) If the hearing is waived, the application or registration shall be denied, suspended, revoked, or probated by an order of the commissioner of health.
(8) Administrative penalties shall be assessed in accordance with the procedures set forth in the Act, Subchapter G (relating to Administrative Penalty).
(f) Suspension, revocation, or denial of renewal.
(1) If the department suspends a registration, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists or for the period of time stated in the order. The department shall investigate prior to making a determination.
(2) During the time of suspension, the suspended registrant shall return his or her registration certificate and identification card to the department.
(3) If a suspension overlaps a registration renewal date, the suspended registration holder may comply with the renewal procedures in this subchapter; however, the department may not renew the registration until the department determines that the reason for suspension no longer exists or the period of suspension is completed.
(4) If the department revokes or does not renew a registration, a person may reapply for a registration by complying with the requirements and procedures in this subchapter at the time of reapplication. The department may refuse to issue a registration if the reason for revocation or denial of renewal continues to exist.
(5) Upon revocation or denial of renewal, a registration holder shall return the registration certificate and identification card to the department.
(g) The department may impose an emergency suspension for a violation of the Act or this chapter in accordance with the procedures established in Occupations Code, §352.254.
§140.284.Registration of Applicants with Criminal Backgrounds.
(a) This section sets out the guidelines and criteria on the eligibility of persons with criminal backgrounds to obtain registration as spectacle dispensers or contact lens dispensers.
(b) Criminal convictions which directly relate to the occupation of dispensing opticians shall be considered by the Department of State Health Services (department) as follows.
(1) The department may suspend or revoke an existing registration or disqualify a person from receiving a registration because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities under that registration.
(2) In considering whether a criminal conviction directly relates, the department shall consider:
(A) the nature and seriousness of the crime;
(B) the relationship of the crime to the purposes for requiring a registration as a spectacle dispensing optician or a contact lens dispenser;
(C) the extent to which a registration might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and
(D) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of a registered spectacle dispensing optician or a registered contact lens dispenser.
(c) The following felonies and misdemeanors directly relate because these criminal offenses indicate an inability or an unwillingness for the person to be able to perform or to be fit for registration:
(1) the misdemeanor of violating the Opticians' Registry Act (Act);
(2) a conviction relating to deceptive business practices;
(3) a misdemeanor or felony offense involving moral turpitude;
(4) the misdemeanor of practicing medicine or optometry without a license;
(5) a misdemeanor or felony offense under various titles of the Texas Penal Code:
(A) Title 5 concerning offenses against the person;
(B) Title 7 concerning offenses against property;
(C) Title 9 concerning offenses against public order and decency;
(D) Title 10 concerning offenses against public health, safety, and morals; and
(E) Title 4 concerning offenses of attempting or conspiring to commit any of the offenses in this subsection; and
(6) other misdemeanors and felonies if disciplinary action by the department will promote the intent of the Act, this subchapter, and the Texas Occupations Code, Chapter 53.
§140.285.Professional and Ethical Standards.
(a) The purpose of this section is to establish the professional and ethical standards to be followed by a registered spectacle dispensing optician or a registered contact lens dispenser.
(b) A registrant shall not misrepresent any professional qualifications or credentials.
(c) A registrant shall not provide any information that is false, deceptive, or misleading to the Department of State Health Services (department).
(d) A registrant shall cooperate with the department by furnishing required documents or information and by responding to a request for information.
(e) A registrant shall not consume alcohol or take controlled substances not prescribed by a licensed physician during the hours the registrant is available to dispense spectacles or contact lenses.
(f) A registrant shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification.
(1) False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes advertising that:
(A) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;
(B) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;
(C) compares a health care professional's service with another health care professional's service unless the comparison can be factually substantiated;
(D) contains a testimonial;
(E) causes confusion or misunderstanding as to the credentials, education, or registration of a health care professional;
(F) advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductible or copayments are required;
(G) advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;
(H) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or
(I) advertises or represents in the use of professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional.
(2) A "health care professional" includes a dispensing optician or any other person licensed, certified, or registered by the state in a health-related profession.
(g) On the written request of a client, a client's guardian, or a client's parent if the client is a minor, a registrant shall provide, in plain language, a written explanation of the dispensing services previously made on a bill or statement for the client. This requirement applies even if the charges are to be paid by a third party.
(h) A registrant may not persistently or flagrantly overcharge or overtreat a client.
(i) A registrant shall make a reasonable attempt to notify each client of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department by providing notification:
(1) on each written contract for services of a registrant;
(2) on a sign prominently displayed in the primary place of business of each registrant; or
(3) in a bill for services provided by a registrant to a client or third party.
(j) A registrant shall be subject to disciplinary action by the department if under the Crime Victims Compensation Act, Texas Civil Statutes, Article 8309-1, the registrant is issued a public letter of reprimand, is assessed a civil penalty by a court, or has an administrative penalty imposed by the attorney general's office.
(k) Unless exempt, a registrant shall comply with the Texas Contact Lens Prescription Act, Texas Occupations Code, Chapter 353.
(l) A registrant may not sell, deliver, or dispense contact lenses to a patient or other consumer in this state unless the registrant receives or verifies a prescription that conforms to the requirements of the Texas Contact Lens Prescription Act, Texas Occupations Code, Chapter 353. The registrant must fill the prescription accurately without modification.
(m) Spectacles may be dispensed only in accordance with a spectacle prescription from a licensed physician or optometrist. This subsection does not prohibit a registrant from duplicating lenses.
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 February 22, 2008.
TRD-200801087
Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: April 6, 2008
For further information, please call: (512) 458-7111 x6972
The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), proposes new §§140.400 - 140.430, concerning the licensing and regulation of chemical dependency counselors.
BACKGROUND AND PURPOSE
The repeal of §§450.100 - 450.126 and new rules are necessary to implement amendments to Texas Occupations Code, Chapter 504, made by Senate Bill (SB) 155, which was adopted by the 80th Legislature, Regular Session, 2007. New and amended rule provisions implementing SB 155 include provisions relating to the approval of peer assistance programs, the certification of clinical supervisors, modifications to the continuing education requirement for renewal of the licensed chemical dependency counselor (LCDC) license, the recognition of other certifications on the LCDC license, and making all persons now licensed, registered, or certified under Texas Occupations Code, Chapter 504, subject to the same extent to disciplinary action and to the criminal history standards developed under that Chapter. The repeal and new rules also consolidate existing Professional Licensing and Certification Unit program rules into 25 Texas Administrative Code (TAC), Chapter 140, Health Professions Regulation.
Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001, (Administrative Procedure Act). Sections 450.100 - 450.126 have been reviewed and the department has determined that, except as amended under the proposed new rules, as further described in this preamble, the reasons for adopting the sections continue to exist because rules on this subject are needed. However, the department is proposing to repeal the existing sections and adopt the rules in 25 TAC, Chapter 140, Health Professions Regulation.
SECTION-BY-SECTION SUMMARY
In addition to the changes specifically outlined, the existing rules have been revised and reorganized as new rules in §§140.400 - 140.430 to ensure appropriate section, subsection, and paragraph organization and captioning; to ensure clarity; to improve spelling, grammar, and punctuation; to improve agency-wide consistency between programs, as appropriate; to ensure that the rules reflect current legal, policy, and operational considerations; to ensure accuracy of legal citations; to delete repetitive, obsolete, or unnecessary language; to improve draftsmanship; and to make the rules more accessible, understandable, and usable, to the extent possible. Additionally, provisions relating to definitions, complaints, and enforcement procedures were added to the subchapter as described below to consolidate the provisions relating to regulation and licensure under Texas Occupations Code, Chapter 504.
New §140.400 proposes a comprehensive list of definitions within the subchapter for terms used in the subchapter, including added definitions for certified clinical supervisor and peer assistance program, both new terms added to implement SB 155, and additions and modifications to other terms needed to update or clarify the meaning of terms used within the subchapter.
New §140.403 proposes to raise the renewal fee for licensed chemical dependency counselors to $115 biennially from $100 biennially. A new initial and renewal certification fee for certified clinical supervisor is proposed to be $20 biennially. These changes are calculated to allow the department to cover the costs of administering Texas Occupations Code, Chapter 504. The fee for replacement or duplicate certificates is proposed to be reduced to $10, instead of $25. In light of the low volume of requests for replacement or duplicate certificates and the consolidation of the LCDC licensing program with other professional licensing programs within the department, it is estimated that a $10 fee will be adequate to cover the costs of replacement or duplicate certificates.
New §140.408 proposes to add the requirement and applicable waiver provision mandated by SB 155 relating to access to a peer assistance program for an LCDC applicant.
New §140.409 proposes to add the option of certified clinical supervisors as a means to obtain supervised work experience, in order to implement SB 155.
New §140.410 proposes to add provision for closure of a CTI or surrender of a CTI registration in response to a complaint to be deemed to be the result of formal disciplinary action, consistent with new §140.428 of this title (Relating to Voluntary Surrender of License, Certification, or Registration In Response to a Complaint).
New §140.411 proposes to establish requirements and procedures relating to certification of clinical supervisors to implement SB 155.
New §140.415 proposes to allow for the affixing of certain approved adhesive labels to the LCDC license certificate to implement SB 155, and proposes to provide for voluntary relinquishment of a license other than in response to a complaint.
New §140.416 proposes to reduce the continuing education hours required for LCDC license renewal to implement SB 155. For license holders who hold a master's or more advanced degree, the requirement is 24 hours biennially. Other license holders must complete 40 hours biennially. The maximum number of continuing education hours that may be earned through teaching a course has been reduced in proportion to the reduction in the total number of required continuing education hours.
New §140.418 proposes procedures for continuing education audits of license holders, and omits the allowance for carry-over of continuing education hours.
New §140.420 proposes to implement SB 155 by establishing requirements and procedures for the approval of peer assistance programs to assist LCDCs whose ability to perform a professional service is impaired or likely to be impaired by abuse of or dependency on drugs or alcohol.
New §140.421 and §140.422 propose to incorporate the role of certified clinical supervisors into current standards for supervision and training of counselor interns. Section 140.421 proposes to require counselor intern supervision documentation to be maintained for five years, rather than four, consistent with the period of counselor intern registration.
New §140.423(a)(9) proposes to require that client records be maintained for at least five years, instead of six years.
New §§140.424 - 140.429 propose to establish, within the subchapter governing the licensing and regulation of LCDCs, rules governing complaints, investigations, disciplinary actions, administrative penalties, informal disposition of contested cases, voluntary license surrender, and contested case procedures, and to improve consistency of practice with other professional licensing programs within, or administratively attached to, the department under HB 2292, 78th Legislature, Regular Session, 2003, while remaining consistent with the requirements of Texas Occupations Code, Chapter 504. Administrative penalty ranges, based upon severity and repetition of violations, have been increased to promote this consistency and to allow the department greater latitude to determine appropriate penalties within statutory limits. In addition, consistent with SB 155, all persons now licensed, registered, or certified under Texas Occupations Code, Chapter 504, will be subject to the disciplinary provisions in this subchapter.
New §140.430 proposes criminal history standards equally applicable to all licensees, registrants, and certificate holders under Texas Occupations Code, Chapter 504, as provided for by SB 155.
FISCAL NOTE
Cindy Bourland, Manager, Professional Licensing and Certification Unit, has determined that for each year of the first five years the sections are in effect, there will be fiscal implications to the state as a result of enforcing or administering the sections as proposed. The effect on state government will be an increase in revenue to the state of $34,250 the first fiscal year and $34,250 each year for fiscal years two through five, based upon an increase in LCDC renewal fees, and based upon the addition of certification and renewal fees for Certified Clinical Supervisors. Given the historically low volume of requests for replacement certificates, any loss of revenue from the reduction in fees is not expected to significantly affect the estimated increases in revenue. Increased costs associated with the approval of peer assistance programs and the certification of clinical supervisors are expected to total $10,000 in the first fiscal year, $25,071 in the second fiscal year, $25,139 in the third fiscal year, $25,252 in the fourth fiscal year, and $25,368 in the fifth fiscal year. Implementation of the proposed sections will not result in any fiscal implications for local governments.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Bourland has also determined that there will be no adverse economic impact on small business or micro-businesses required to comply with the sections as proposed. This determination was made because the repeal and new rules do not impose any new requirements that impose a cost on small businesses, as defined by Government Code, §2006.001. Small and micro-businesses will not be required to alter their business practices in order to comply with the new rules.
There is anticipated economic cost to individuals who are required to comply with the sections as proposed. Each licensed chemical dependency counselor will be required to remit an additional $15 every two years in order to renew the counselor's license. The current biennial renewal fee is $100 and the proposed biennial renewal fee is $115. In addition, Certified Clinical Supervisors will be required to pay $20 initial and renewal certification fees and, if they have not previously paid that fee for LCDC licensure, a $40 background investigation fee.
There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
In addition, Ms. Bourland has also determined that for each year of the first five years the sections are in effect, the public will benefit from the adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections is to protect and promote public health, safety, and welfare, by regulating licensed chemical dependency counselors, certified clinical supervisors, clinical training institutions, and counselor interns. In addition, approved peer assistance programs provided for by the rules will encourage impaired counselors to obtain assistance for their impairment, and the availability of certified clinical supervisors will increase the training and supervision options for counselor interns and thereby facilitate the licensure of additional licensed chemical dependency counselors.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the pubic health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The department has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Stewart Myrick, Program Director, Licensed Chemical Dependency Counselor Program, Professional Licensing and Certification Unit, MC 1982, Division for Regulatory Services, Department of State Health Services, 1100 West 49th Street, P.O. Box 149347, Austin, Texas 78756, (512) 834-4565, or by email to lcdc@dshs.state.tx.us. When submitting comments by e-mail, please indicate "Comments on Proposed Rules" in the subject line. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The proposed new rules are authorized by Texas Occupations Code, §504.051, which authorizes rulemaking necessary to carry out the duties established under Texas Occupations Code, Chapter 504, the establishment of standards of conduct and ethics for Chapter 504 licensees, and the establishment of additional criteria for peer assistance programs for chemical dependency counselors; Texas Occupations Code, §504.053, which authorizes the Executive Commissioner of the Health and Human Services Commission to set application, examination, license renewal, and other fees in amounts sufficient to cover the costs of administering Chapter 504; and by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
The proposed new rules affect the Texas Occupations Code, Chapter 504; Health and Safety Code, Chapter 1001; and Government Code, Chapter 531. Review of the rules implements Government Code, §2001.039.
§140.400.Definitions.
Notwithstanding the provisions of §441.101 of this title (relating to Definitions), the following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Abuse--An intentional, knowing, or reckless act or omission by a counselor, applicant for counselor licensure, counselor intern, certified clinical supervisor, clinical training institution, or personnel of any such person that causes or may cause death, emotional harm or physical injury to a client. Abuse includes, without limitation, the following:
(A) any sexual contact, sexual exploitation, or indecent exposure between a counselor, applicant for counselor licensure, counselor intern, certified clinical supervisor, clinical training institution, or personnel of any such person, and a client, or as otherwise defined in this section;
(B) corporal punishment or physical assault;
(C) nutritional deprivation or sleep deprivation;
(D) efforts to cause fear;
(E) the use of any form of communication to threaten, curse, shame, or degrade a client;
(F) restraint that does not conform with Chapter 448 of this title (relating to Standard of Care);
(G) coercive or restrictive actions taken in response to a client's request for discharge or refusal of medication or treatment that are illegal or not justified by the client's condition; and
(H) any other act or omission classified as abuse by Texas law, including, but not limited to, Texas Family Code, §261.001 and Texas Human Resources Code, §48.002.
(2) Accredited institution of higher education--An institution that holds accreditation or candidacy status from an accreditation organization recognized by the Council for Higher Education Accreditation.
(3) Act--Texas Occupations Code, Chapter 504, Chemical Dependency Counselors.
(4) Administrative Hearing--A contested case hearing conducted by the State Office of Administrative Hearings (SOAH) under Texas Government Code, Chapter 2001, Administrative Procedure Act.
(5) Administrative Law Judge--An individual appointed by the chief administrative law judge of SOAH under Texas Government Code, §2003.041, to preside over a contested case proceeding.
(6) Administrative Procedure Act (APA)--Texas Government Code, Chapter 2001, as amended.
(7) Adolescent--An individual 13 through 17 years of age whose disabilities of minority have not been removed by marriage or judicial decree.
(8) Adult--An individual 18 years of age or older, or an individual under the age of 18 whose disabilities of minority have been removed by marriage or judicial decree.
(9) Advanced Practice Nurse --A registered nurse currently licensed in Texas who is approved by the Texas Board of Nurse Examiners to engage in advanced practice.
(10) Applicant--A person who has submitted an application for an initial, or for the renewal of, a license, certification, or registration.
(11) Assessment--An ongoing process through which the counselor collaborates with the client and others to gather and interpret information necessary for developing and revising a treatment plan and evaluating client progress toward achievement of goals identified in the treatment plan, resulting in comprehensive identification of the client's strengths, weaknesses, and problems/needs.
(12) Career School or College--An organization approved and regulated by the Texas Workforce Commission, pursuant to Title 40, Texas Administrative Code, Chapter 807 (relating to Career Schools and Colleges), that offers a course of study in chemical dependency counseling.
(13) Certified Clinical Supervisor (CCS)--A person certified by the department pursuant to Texas Occupations Code §504.1521 (relating to Supervised Work Experience).
(14) Chemical Dependency Treatment (treatment)--A planned, structured, and organized chemical dependency program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs. It includes, but is not limited to, the application of planned procedures to identify and change patterns of behavior related to or resulting from substance-related disorders that are maladaptive, destructive, or injurious to health, or to restore appropriate levels of physical, psychological, or social functioning.
(15) Child--For purposes of reporting abuse and neglect, a child is an individual under the age of 18 whose disabilities of minority have not been removed by marriage or judicial decree. For all other purposes in these rules, child shall mean an individual under the age of 13.
(16) Client--An individual who receives or has received services, including admission authorization or assessment or referral, from a chemical dependency counselor, counselor intern, applicant for licensure as a counselor, certified clinical supervisor, clinical training institution, or from a person for whom the counselor, intern, certified clinical supervisor or applicant is working on a paid or voluntary basis, or was working at the time the individual was a client.
(17) Clinical Training Institution (CTI)--An individual or legal entity registered with the department to supervise a counselor intern.
(18) Counselor--A licensed chemical dependency counselor.
(19) Counselor Intern (CI or intern)--A person seeking a license as a chemical dependency counselor who is registered with the department and pursuing a course of training in chemical dependency counseling at a registered clinical training institution or under the supervision of a certified clinical supervisor.
(20) CSAT--Center for Substance Abuse Treatment, Substance Abuse and Mental Health Services Administration, United States Department of Health and Human Services.
(21) Diagnostic and Statistical Manual of Mental Disorders (DSM)--The Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. Any reference to DSM shall constitute a reference to the most recent edition published.
(22) Department--The Department of State Health Services.
(23) Exploitation--The illegal or improper use of a client, or the client's resources, for monetary or personal benefit, profit, or gain by a counselor, counselor intern, or applicant for counselor licensure, or any other act or omission classified as exploitation by Texas law including, but not limited to, Texas Family Code, §261.001 and Texas Human Resources Code, §48.002. Exploitation includes, but is not limited to, sexual exploitation, as defined herein.
(24) Graduate--An individual who has successfully completed, or been exempted from, as applicable, the 270 hours of education, 300 hour practicum, and 4,000 hours of supervised work experience and who is still registered with the department as a counselor intern.
(25) Hearing--Administrative Hearing.
(26) Indecent Exposure--Exposure by a chemical dependency counselor, counselor intern, certified clinical supervisor, applicant for any such license, or personnel of a clinical training institution or other licensee, of the individual's anus or any part of the individual's genitals, knowing a client is present; or compulsion or encouragement by a chemical dependency counselor, counselor intern, certified clinical supervisor, applicant for any such license, or personnel of a clinical training institution or other licensee, for a client to expose the client's anus or any part of the client's genitals.
(27) Knowledge, Skills, and Attitudes (KSAs)--The knowledge, skills, and attitudes of addictions counseling as defined by CSAT Technical Assistance Publication (TAP 21) "Addictions Counseling Competencies: the Knowledge, Skills, and Attitudes of Professional Practice."
(28) License--Unless otherwise specified explicitly or by the context, any form of licensure issued under this subchapter, including a CI registration, CCS certification, CTI registration, or licensed chemical dependency counselor license.
(29) Licensed Chemical Dependency Counselor (LCDC)--A counselor licensed by the department, pursuant to Texas Occupations Code, Chapter 504, to engage in the practice of chemical dependency counseling.
(30) Licensee--Unless otherwise specified explicitly or by the context, any holder of a license issued under this subchapter, including the holder of a CI registration, CCS certification, CTI registration, or LCDC license
(31) Neglect--A negligent act or omission by a counselor, applicant for counselor licensure, counselor intern, certified clinical supervisor, clinical training institution, or personnel of any such person that causes or may cause death, physical injury, or substantial emotional harm to a participant or client. Examples of neglect include, but are not limited to:
(A) failure to provide adequate nutrition, clothing, or health care;
(B) failure to provide a safe environment free from abuse;
(C) failure to maintain adequate numbers of appropriately trained staff;
(D) failure to establish or carry out an appropriate individualized treatment plan; and
(E) any other act or omission classified as neglect by the Texas law including, but not limited to, Texas Family Code, §261.001 and Texas Human Resources Code, §48.002.
(32) Peer Assistance Program--a program approved by the department pursuant to Texas Occupations Code, §504.057 (relating to Approval of Peer Assistance Programs).
(33) Person--an individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.
(34) Practice of Chemical Dependency Counseling--Providing or offering to provide chemical dependency counseling services involving the application of the principles, methods, and procedures of the chemical dependency counseling profession, as defined by the practice dimensions and competencies identified and described in the CSAT Technical Assistance Publication (TAP 21) "Addictions Counseling Competencies: the Knowledge, Skills, and Attitudes of Professional Practice."
(35) Prevention--A proactive process that uses multiple strategies to preclude the illegal use of alcohol, tobacco and other drugs and to foster safe, healthy, drug-free environments.
(36) Private Practice--The individual practice of a private, licensed chemical dependency counselor who personally renders individual or group services within the scope of the LCDC's license and in the LCDC's offices. To qualify to be engaged in private practice, the individual LCDC must not hold him/herself out as an organized program, or a part thereof, that provides counseling or treatment. This definition does not prohibit the sharing of office space or administrative support staff.
(37) Qualified Credentialed Counselor (QCC)--A licensed chemical dependency counselor or one of the practitioners listed below who is licensed and in good standing in the State of Texas, to the extent that such individual is acting within the authorized scope of the individual's license, including:
(A) licensed professional counselor (LPC);
(B) licensed clinical social worker (LCSW);
(C) licensed marriage and family therapist (LMFT);
(D) licensed psychologist;
(E) licensed physician;
(F) licensed physician's assistant;
(G) certified addictions registered nurse (CARN); or
(H) advanced practice nurse recognized by the Board of Nurse Examiners as a clinical nurse specialist or practitioner with a specialty in psychiatric-mental health nursing.
(38) Referral--The process of identifying appropriate services and providing the information and assistance needed to access them.
(39) Rules--An agency statement of general applicability, including a state rule or federal regulation, that implements or prescribes law or policy by defining general standards of conduct, rights, or obligations of persons, or describes the procedure or practice requirements that prescribe the manner in which public business before an agency may be initiated, scheduled, or conducted, or interprets or clarifies law or agency policy. The term includes the amendment or repeal of a prior rule but does not include statements concerning only the internal management or organization of the agency that does not affect private rights or procedures. Any reference to a rule shall mean the rule then in effect and as amended, unless otherwise specified.
(40) Screening--The process through which qualified staff, client, and available significant others, as appropriate, determine the most appropriate initial course of action, given the individual's needs and characteristics and the available resources within the community. In a treatment program, screening includes determining whether an individual is appropriate and eligible for admission to a particular program.
(41) Services--Substance abuse services.
(42) Sexual contact--Any intentional touching, or request to be allowed to touch, by a chemical dependency counselor, counselor intern, certified clinical supervisor, applicant for any such license, or personnel of a clinical training institution or other licensee, including touching through clothing, of the anus, breast, or any part of the genitals of a client; any intentional touching of any part of the body of a client, or request to be allowed to touch, including touching through clothing, with the anus, breast, or any part of the genitals of a chemical dependency counselor, counselor intern, certified clinical supervisor, applicant for any such license, or personnel of a clinical training institution or other licensee; or any compulsion or encouragement by a chemical dependency counselor, counselor intern, certified clinical supervisor, clinical training institution, applicant for any such license, or personnel of such licensee, for a client to engage in touching through clothing, of the anus, breast, or any part of the genitals of another individual, or for a client to touch any part of the body of another individual with the anus, breast, or any part of the client's genitals.
(43) Sexual Exploitation--A pattern, practice, or scheme of conduct by a chemical dependency counselor, counselor intern, certified clinical supervisor, clinical training institution, applicant for any such license, or personnel of any such person, that involves a client and can reasonably be construed as being for the purpose of sexual arousal or gratification or sexual abuse. It may include, without limitation, sexual contact, a request for sexual contact, or a representation that sexual contact or exploitation is consistent with, a part of, or a condition of receiving services. It is not a defense to sexual exploitation of a client if it occurs:
(A) with the actual or perceived consent of the client;
(B) outside of the delivery of services;
(C) off of the premises used for the delivery of substance abuse services; or
(D) after the client has stopped receiving services, where the conduct occurs within two years of when the client stopped receiving services.
(44) State Office of Administrative Hearings (SOAH)--The agency to which contested cases are referred by the department.
(45) Substance Abuse--A maladaptive pattern of substance use leading to clinically significant impairment or distress, as defined by the most recently published version of the DSM.
(46) Substance Abuse Education--A planned, structured presentation of information provided by qualified staff, related to substance abuse or substance dependence, allowing for discussion of the material presented, and relevant to the client's goals.
(47) Substance Abuse Services (Services)--A comprehensive term intended to describe activities undertaken to address any substance-related disorder as well as education and prevention activities. The term includes, without limitation, the provision of screening, assessment, referral, chemical dependency treatment, and chemical dependency counseling.
(48) Treatment Plan--An individualized, written plan developed and implemented through a collaborative process between qualified personnel and the client and reflecting and identifying desired treatment outcomes and the strategies for achieving them. At a minimum, the treatment plan addresses the identified substance use disorder(s), as well as issues related to treatment progress, including relationships with family and significant others, employment, education, spirituality, health concerns, and legal needs.
(49) Unethical Conduct--Conduct prohibited by the ethical standards adopted by state or national professional organizations or by rules established by a profession's state licensing agency.
§140.401.License Required.
(a) An individual identified to the public as a chemical dependency counselor must be licensed or exempt under this subchapter. Except as provided by this section, individuals who are not LCDCs shall not:
(1) offer or provide chemical dependency counseling services other than education;
(2) represent themselves as chemical dependency counselors; or
(3) use any name, title, or designation that implies licensure as a chemical dependency counselor.
(b) The following individuals are exempt from LCDC licensure requirements when they offer or provide chemical dependency counseling services within the scope of their authorized duties and scope of practice:
(1) counselors employed by federal institutions;
(2) school counselors certified by the Texas Education Agency;
(3) to the extent such licensees are acting within the authorized scope of their respective licenses, licensed physicians, licensed psychologists, licensed professional counselors (LPC), licensed marriage and family therapists (LMFT), and licensed social workers;
(4) religious leaders of congregations providing pastoral counseling within the scope of their congregational duties and people who are working for or providing counseling with a program exempted under Texas Health and Safety Code, §§464.051 - 464.061 (relating to Faith-Based Chemical Dependency Treatment Programs);
(5) students who are participating in a practicum that meets the requirements as set forth in §140.407 of this title (relating to Practicum Standards) as part of a supervised course of clinical training at a regionally accredited institution of higher education or a career school or college, as long as they do not hold themselves out as, or use any name, title, or designation that implies licensure as a chemical dependency counselor or registration under this subchapter as a counselor intern.
(c) Residents of other states are exempt from the LCDC licensure requirements of this subchapter if they:
(1) are legally authorized to provide chemical dependency counseling in those states; and
(2) do not offer or provide chemical dependency counseling in Texas for more than 30 days in any 12-month period.
(d) An individual who qualifies for an exemption but chooses to obtain an LCDC license from the department under this subchapter is subject to the same rules and disciplinary actions as other licensees.
§140.402.Scope of Practice.
(a) An LCDC is licensed to provide chemical dependency counseling services involving the application of the principles, methods, and procedures of the chemical dependency profession as defined by the profession's ethical standards and the KSAs as defined in §140.400 of this title (relating to Definitions). The license does not qualify an individual to provide services outside this scope of practice.
(b) The scope of practice for an LCDC includes services that address substance abuse/dependence and/or its impact on the service recipient subject to the following:
(1) the LCDC is prohibited from using techniques that exceed his or her professional competence;
(2) the service recipient may only be the user, family member or any other individual involved in a significant relationship with a user;
(3) LCDCs may diagnose substance disorders, but anything other than a mental health diagnostic impression must be determined by a qualified professional; and
(4) LCDCs are not qualified to treat individuals with a mental health disorder or provide family counseling to individuals whose presenting problems do not include chemical dependency.
§140.403.Fees.
(a) The schedule of fees is:
(1) initial LCDC application fee--$25, in addition to any fees assessed under subsection (e) of this section;
(2) initial LCDC licensure fee--$75;
(3) LCDC renewal and renewal application fee--$115, in addition to any fees assessed under subsection (e) of this section;
(A) late renewal penalty fee (up to 90 days after the license expiration date)--$37.50;
(B) late renewal penalty fee (between 91 days and one year after the license expiration date)--$75;
(4) background investigation fee--$40;
(5) inactive status fee--$50;
(6) licensure certificate replacement or duplication fee--$10;
(7) returned check fee--$25;
(8) clinical supervisor initial and renewal application and certification fee--$20.
(b) The department may contract or enter into a memorandum of understanding with a person to administer the LCDC licensure examination, and the fee charged by that person is subject to change. The current fee shall be printed in the examination registration form. Examination fees shall be paid directly to the contract organization administering the examination.
(c) Licensure fees paid to the department are not refundable.
(d) Fees shall be paid in full with a personal check, cashier's check, commercial check, or money order.
(e) For all new and renewal applications, the department is authorized to collect subscription and convenience fees in amounts determined by the Texas Online Authority to recover costs associated with new and renewal application processing through Texas Online. The fees may be paid with a credit card when applying for or renewing a license online.
§140.404.LCDC Licensure Application Standards and Counselor Intern Registration.
(a) Every individual seeking LCDC licensure shall apply for registration as a counselor intern and initiate the licensure application process with the department by submitting the following items in a form acceptable to the department:
(1) the initial LCDC application fee and the background investigation fee;
(2) the department's current application form that has been completed, signed, dated, and notarized;
(3) a recent full-face wallet-sized photograph of the applicant;
(4) two sets of fingerprints completed according to department instructions on cards issued by the department; and
(5) documentation that the applicant has successfully completed intern registration requirements in §140.405 of this title (relating to Requirements for Counselor Intern Registration).
(b) A licensure or counselor intern registration applicant shall:
(1) read the department rules in this subchapter;
(2) follow all laws and rules, including the ethical standards;
(3) provide to the department, or give the department permission to request from third parties, any additional information or references needed or requested by the department; and
(4) notify the department in writing within 30 days of a change in name, address, or telephone number.
(c) Application materials become the property of the department.
(d) No determination will be made on an application unless it is complete.
(1) Incomplete documents will be returned to the sender. The department will hold the remaining documents, but will not take action on the application until all outstanding documents have been completed as required by the department.
(2) The application and background fee is not refundable and will not be returned. When resubmitting documents that were returned to the sender as incomplete, a second application fee is not required.
(e) A document may be considered incomplete if it does not conform to the following standards.
(1) All documents must be complete, signed, and dated. Signatures shall include credentials. If the documentation relates to past activity, the date of the activity shall also be recorded.
(2) Documentation shall be permanent and legible.
(3) When it is necessary to correct a document, the error shall be marked through with a single line, dated, and initialed by the writer. Correction fluid shall not be used.
(f) An applicant for CI registration must receive written notice of registration from the department before accumulating any supervised work, holding oneself out as a registered counselor intern, taking the licensure examination, or providing chemical dependency services supervised in accordance with the requirements of this subchapter.
(g) Within 45 days of receipt of the application, the department will notify the applicant that the application is complete or specify the additional information required.
(h) An application shall be voided after one year if the applicant has not provided the additional information necessary to process the application.
(i) By signing the application, the applicant accepts responsibility for remaining knowledgeable of and abiding by the applicable rules of this subchapter, including revisions.
§140.405.Requirements for Counselor Intern Registration.
(a) To be eligible for counselor intern registration under this subchapter, an individual must:
(1) be at least 18 years of age;
(2) have a high school diploma or its equivalent;
(3) successfully complete 270 classroom hours of chemical dependency curricula as described in §140.406 of this title (relating to Standards for 270 Educational Hours);
(4) complete 300 hours of approved supervised field work practicum as described in §140.407 of this title (relating to Practicum Standards);
(5) pass the criminal history standards described in §140.430 of this title (relating to Criminal History Standards);
(6) sign a written agreement to abide by the ethical standards contained in §140.423 of this title (relating to Professional and Ethical Standards); and
(7) be worthy of the public trust and confidence as determined by the department.
(b) Applicants holding at least a baccalaureate degree in chemical dependency counseling, sociology, psychology, or any other degree approved by the department are exempt from the 270 hours of education and the 300 hour practicum. The applicant must submit an official college transcript with the official seal of the college and the signature of the registrar. Degree programs approved by the department include baccalaureate, masters, or doctoral degrees with a course of study in human behavior/development and service delivery.
§140.406.Standards for 270 Educational Hours.
(a) At least 135 (nine semester hours) of the education hours must be specific to substance use disorders and their treatment. The remaining 135 hours may be specific or related to chemical dependency counseling. Related education hours may include courses in psychology, upper division sociology, counseling, mental health, behavioral science, psychiatric nursing, ethics, and rehabilitation counseling.
(b) The education shall be provided by a career school or college, or an accredited institution of higher education.
(c) Continuing education and extended learning courses offered by institutions of higher education are not acceptable unless the curriculum follows the Workforce Education Course Manual and meets the standards equivalent to a credit course.
(d) Educational hours obtained at a career school or college must follow the curriculum for Transdisciplinary Foundations outlined in the KSAs:
(1) Understanding Addiction;
(2) Treatment Knowledge;
(3) Application to Practice; and
(4) Professional Readiness.
(e) The department will not accept hours unless documented with a passing grade on an official transcript from the school. The applicant shall submit additional information requested by the department if needed to verify the content of a course.
§140.407.Practicum Standards.
(a) The practicum shall be completed under the administration of a career school or college or an accredited institution of higher education.
(b) The applicant must complete the practicum under the administration of a single school.
(c) The department will not accept a practicum without an official transcript from the school and a letter from the school's educational coordinator or chair verifying that the practicum was completed in the field of substance abuse.
(d) Practicum hours may be paid or voluntary.
(e) The practicum shall be delivered according to a written training curriculum that provides the student with an orientation to treatment services and exposure to treatment activities in each of the KSA dimensions. The practicum must include the intern observing treatment delivery and the intern providing services under direct observation. The practicum shall include at least 20 hours of experience in each of the KSA dimensions.
(f) All practicum training shall be provided by qualified credentialed counselors (QCCs).
§140.408.Requirements for LCDC Licensure.
(a) To be eligible for, and to complete an initial application for, a chemical dependency counselor license under this subchapter, an individual must:
(1) complete the application required under §140.404 of this title (relating to LCDC Licensure Application Standards and Counselor Intern Registration);
(2) meet the requirements to be a counselor intern in §140.405 of this title (relating to Requirements for Counselor Intern Registration);
(3) hold an associate degree or more advanced degree with a course of study in human behavior/development and service delivery, with the exception of:
(A) those applicants who were registered as a counselor intern based upon an application submitted to the department by September 1, 2004; and
(B) those LCDCs who are renewing an existing license.
(4) complete 4,000 hours of approved supervised experience working with chemically dependent individuals as described in §140.409 of this title (relating to Standards for Supervised Work Experience);
(5) pass the written chemical dependency counselor examination approved by the department;
(6) submit an acceptable written case presentation to the test administrator;
(7) pass an oral chemical dependency counselor examination approved by the department;
(8) submit two letters of recommendation from LCDCs;
(9) submit written assurance that the individual has access to an approved peer assistance program. The department may waive this requirement if the department determines, based upon information submitted by the applicant sufficient to support the determination, that a peer assistance program is not reasonably available to the individual; and
(10) pay the initial LCDC licensure fee.
(b) The department may waive the 4,000 hours of supervised work experience for individuals who hold a masters or doctoral degree in social work, or a masters or doctoral degree in a counseling-related field with 48 semester hours of graduate-level courses. Counseling-related degrees shall be reviewed on a case-by-case basis. An applicant for waiver shall submit an official college transcript with the official seal of the college and the signature of the registrar, and any other related documentation requested by the department.
§140.409.Standards for Supervised Work Experience.
(a) An LCDC applicant must be registered with the department as described in §140.404 and §140.405 of this title (relating to LCDC Licensure Application Standards and Counselor Intern Registration, and Requirements for Counselor Intern Registration) before accumulating supervised work experience.
(b) All supervised work experience obtained in Texas and all chemical dependency counseling services offered or provided by a CI must be completed at a registered CTI or under the supervision of a CCS. The department will not accept hours from an unregistered CTI or from a CCS that has not been certified by the department.
(c) Work experience must be documented on the department's supervised work experience documentation form and signed by a CTI coordinator or a CCS.
(1) All hours included in the documented supervised work experience must be performed within the KSA dimensions and in compliance with the Professional and Ethical Standards set forth in §140.423 of this title (relating to Professional and Ethical Standards).
(2) The supervised work experience form must be accompanied by the counselor intern's job description reflecting duties in the KSA dimensions.
(d) Out-of-state work experience will be accepted only if the following conditions are met.
(1) The applicant is either certified or licensed or in the process of seeking licensure or certification in the other state.
(2) The standards for clinical supervision of work experience must meet or exceed Texas standards and be outlined in the governing agency's rules or standards. A copy of the governing rules or standards must be submitted with the other required documentation of supervised work experience.
(3) The supervised work experience must be documented on the department's supervised work experience form or a comparable form used by the governing agency of the other state.
(e) Supervised work experience may be paid or voluntary.
(f) An individual who has completed the 4,000 hours of supervised work experience and is currently eligible to take or retake the examination is a graduate intern and may continue to provide chemical dependency services under the auspices of a registered clinical training institution or a certified clinical supervisor during the five-year registration period.
(g) It is the applicant's responsibility to verify the CTI or CCS holds a valid registration or certification issued by the department.
(h) The department may refuse to accept supervised work experience hours submitted to the department that relate to a violation of the Act or this subchapter for which final disciplinary action has been taken against the CI or the CI's registration under this subchapter.
§140.410.Clinical Training Institution (CTI) Registration.
(a) To become a registered clinical training institution (CTI), a person shall:
(1) provide activities in an array of the KSA dimensions, including assessment and counseling;
(2) serve a predominantly substance-abusing population;
(3) employ a full time QCC as the CTI coordinator;
(4) be in good standing, with no pending disciplinary actions, with applicable licensing and regulatory agencies;
(5) agree to comply with applicable rules in this subchapter; and
(6) submit a complete application.
(b) The program shall receive the registration and training program number before training begins. Approval allows the CTI to provide clinical training at any of its programs or sites with relevant services.
(c) The approval is valid for two years. The CTI shall reapply every two years by submitting a completed application form. The department may mail a courtesy notice, but it is the program's responsibility to reapply at least 45 days before the expiration date.
(d) The CTI shall notify the department in writing within 30 days of the following changes:
(1) a change in the CTI coordinator;
(2) a change in the CTI's name, mailing address, or telephone number; and
(3) closure of the CTI. The CTI shall return its registration with its notice of closure. Closure of the CTI and/or surrender of a CTI's registration in response to a complaint shall be deemed to be the result of formal disciplinary action, as described in §140.428 of this title (relating to Voluntary Surrender of License, Certification, or Registration In Response to a Complaint).
§140.411.Certified Clinical Supervisor (CCS) Certification Requirements.
(a) To become a certified clinical supervisor, an individual shall:
(1) be a QCC, as set forth in §140.400 of this title (relating to Definitions), in good standing, with no active suspension or probated suspension in effect against the individual's license, and no unpaid administrative penalties;
(2) submit verification of current certification as a clinical supervisor issued by the International Certification and Reciprocity Consortium or one of its member boards;
(3) submit a plan of activities, to be implemented for any CI the CCS supervises, in an array of the KSA dimensions, including assessment and counseling;
(4) serve a predominantly substance-abusing population;
(5) submit a completed application;
(6) submit two sets of fingerprints completed according to department instructions, if the individual has not previously submitted fingerprints for the purposes of licensure under this subchapter, and pass the criminal history standards described in §140.430 of this title (relating to Criminal History Standards);
(7) pay the background investigation fee, if the individual has not previously paid this fee for the purposes of licensure under this subchapter; and
(8) pay the application fee.
(b) If the individual is licensed as a chemical dependency counselor, then the certification as a clinical supervisor will expire on the same day as the license. If the individual is not licensed as a chemical dependency counselor, then the certification as a clinical supervisor will expire on the second anniversary of the last day of the month of issuance.
(c) An individual may renew this certification by submitting the items as described in subsection (a) of this section.
§140.412.LCDC Licensure Examination.
(a) To be eligible for the LCDC licensure examination, an applicant shall:
(1) be registered with the department as a counselor intern;
(2) submit an acceptable case study to the test administrator; and
(3) pay the examination fee to the test administrator.
(b) All required documentation and fees must be submitted to the test administrator by the specified deadlines. It is the applicant's responsibility to obtain testing information.
(c) An applicant may only take each portion of the examination four times, and all testing must be completed within five years from the date of registration.
§140.413.Counselor Intern Registration Expiration.
If an applicant does not complete one or more of the requirements for licensure as set forth in §140.408 of this title (relating to Requirements for LCDC Licensure) within five years from the date of registration, the registration will expire and the department will not issue a license.
(1) An individual whose application to become an LCDC has been finally denied is no longer registered as a graduate or counselor intern and cannot offer or provide chemical dependency counseling services as a CI or graduate CI.
(2) An individual whose CI registration has expired under this section may reapply for CI registration and licensure only after completing 24 semester hours of course work, pre-approved by the department, at a career school or college or an institution of higher education. The new application, which must be submitted within five years of the date of expiration of the individual's CI registration, shall not be considered complete without an official college transcript documenting the required coursework, a subsequent registration application form, and the initial LCDC application fee.
(3) If the department grants the new application for CI registration and permits the individual to reapply for LCDC licensure under the preceding paragraph, the individual must complete the remaining requirements for licensure and may take the failed portion(s) of the examination only an additional three times. The provisions in §140.408(a)(3)(A) of this title shall not apply. The outstanding requirements for licensure must be completed within three years of the new date of registration. During this period, the applicant may provide chemical dependency counseling services as a counselor intern in accordance with the supervision requirements of this subchapter.
§140.414.LCDC Licensure Through Reciprocity.
(a) An individual licensed or certified in another state as a chemical dependency counselor may apply for licensure as an LCDC through reciprocity by submitting:
(1) a copy of the reciprocal license or certification, with verified information from the issuing authority as to any disciplinary history;
(2) the department's current reciprocity application, which has been completed, signed, dated, and notarized;
(3) two sets of fingerprints on cards issued by the department;
(4) a recent full-face wallet-sized photograph of the applicant;
(5) two letters of recommendation; and
(6) the application fee and the background investigation fee;
(7) proof of successful completion of a licensing examination approved by the department; and
(8) an official transcript showing that the individual holds an associate degree or more advanced degree with a course of study in human behavior/development and service delivery.
(b) The applicant shall meet the criminal history standards described in §140.430 of this title (relating to Criminal History Standards).
(c) The department will not issue a license based on reciprocity unless it finds that the licensing or certification standards of the state of origin are at least substantially equivalent to the requirements for licensure of the Act and this subchapter. A state that does not require successful completion of a licensing examination approved by the department or a degree, as set forth in subsection (a) of this section, does not have standards that are substantially equivalent to the requirements for licensure under the Act and this subchapter. Any applicant for reciprocity that has not successfully completed a licensure examination approved by the department or a degree that satisfies subsection (a) of this section shall be required to do so as a prerequisite to eligibility for a license based upon reciprocity.
(d) An applicant who does not qualify for reciprocity may apply for licensure based upon the standards set forth in §140.408 of this title.
§140.415.Issuing Licenses.
(a) Absent action by the department against the applicant under §140.425 of this title (relating to Disciplinary Actions), the department will issue the applicable form of license under this subchapter when the applicant has met all requirements and paid any required fee for the license.
(b) All licensees under this subchapter shall keep current versions of the certificate of licensure and the department's public complaint notice containing the current name, mailing address, and telephone number for the department, and a statement that a complaint against a licensee under this subchapter may be directed to the department, prominently displayed in their place of business. LCDCs may apply an adhesive label issued by the Texas Certification Board of Addiction Professionals with the designation and expiration date of any other related certification held by the license holder that is approved by the International Certification and Reciprocity Consortium or another person approved by the department.
(c) A licensee shall not duplicate a licensure certificate to obtain a second copy of the license. A licensee may obtain an official duplicate certificate from the department by submitting a written request and the fee specified in §140.403 of this title (relating to Fees).
(d) The department will replace a lost or damaged certificate if the licensee provides:
(1) the remnants of the original licensure certificate (if damaged);
(2) the original licensure certificate and copy of legal documents (for a name change);
(3) the original licensure certificate (for printing error); or
(4) a notarized statement if the licensure certificate has been lost, stolen, or destroyed.
(e) A license replaced because of a printing error or mail damage will be replaced without cost, but all other replacements of licensure certificates require a fee, as specified in §140.403 of this title.
(f) LCDCs and CCSs shall notify the department in writing within 30 days of a change in name, address, or telephone number.
(g) The licensee shall return the original licensure certificate if it is relinquished, suspended, revoked, or voluntarily surrendered.
(h) All licensees shall remain knowledgeable of and abide by applicable statutes and rules and their amendments.
(i) A licensee may at any time voluntarily offer to relinquish his or her license for any reason, without compulsion.
(1) The original licensure certificate may be delivered to the department by hand or postal delivery.
(2) If there is no complaint pending against the licensee, the department may accept the relinquishment and void the applicable license.
(3) If a complaint is pending, the procedures for acceptance of a license surrender are set out in §140.428 of this title (relating to Voluntary Surrender of License, Certification, or Registration In Response to a Complaint).
(4) A license that has been surrendered and accepted may not be reinstated. However, a person may apply for a new license in accordance with the Act and this subchapter.
§140.416.LCDC License Expiration, Renewal, and Continuing Education Requirements.
(a) An LCDC license issued under this subchapter is valid until the expiration date printed on the license, which is calculated on a two-year renewal cycle from the date of original licensure. The licensee is responsible for renewing the license in a timely manner. The department will send the licensee a renewal notice, but failure to receive notice from the department does not waive or extend renewal deadlines.
(b) To renew a license, the LCDC shall:
(1) send a complete renewal application to the department;
(2) pay the renewal and renewal application fees as set forth in §140.403 of this title (relating to Fees);
(3) meet the criminal history standards described in §140.430 of this title (relating to Criminal History Standards); and
(4) complete all required continuing education as described in §140.418 of this title (relating to Continuing Education Standards).
(c) An LCDC who is otherwise eligible to renew a license may renew an unexpired license by submitting a complete renewal application and paying the required renewal fee to the department before the expiration date of the license. The renewal application and fee must be postmarked on or before the expiration date.
(d) If the LCDC's license has been expired for 90 days or less, the person may renew the license by paying to the department a fee in an amount equal to one and one-half times the required renewal fee.
(e) If the LCDC's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the department a fee in an amount equal to two times the required renewal fee.
(f) If the LCDC's license has been expired for one year or more, the person may not renew the license. The LCDC may obtain a new license by submitting to reexamination and complying, under current standards, with the requirements and procedures for obtaining an initial license.
(g) Notwithstanding in subsection (f) of this section, the department may renew an LCDC license that has been expired for one or more years without reexamination if the applicant was licensed in this state, moved to another state, and is currently licensed as an LCDC and in good standing in that state, with no pending disciplinary actions or active sanctions against the license or LCDC, and has been in practice in the other state for the two years preceding the date the person applies for renewal. The person must pay to the department a fee in an amount equal to two times the required renewal fee for the license.
(h) An LCDC whose license has expired cannot offer or provide chemical dependency counseling services as defined by the KSAs or represent himself or herself as an LCDC.
(i) An LCDC who holds a master's degree or more advanced degree shall complete at least 24 hours of continuing education during each two-year licensure period. The 24 hours of education must include the specific courses required in subsection (k) of this section and, if applicable, in subsection (l) of this section.
(j) An LCDC who does not meet the criteria in subsection (i) of this section must complete at least 40 hours of continuing education. The 40 hours of education must include the specific courses required in subsection (k) of this section and, if applicable, in subsection (l) of this section.
(k) Continuing education hours must include at least three hours of ethics training and a total of at least six hours of training in HIV, Hepatitis C, and sexually transmitted diseases.
(l) If an individual's job duties include clinical supervision, required hours of continuing education must include three hours of clinical supervision training.
(m) An LCDC who teaches a qualifying continuing education course shall receive the same number of hours as students attending the course. Only one set of hours can be accrued for a single curriculum, and no more than one half of the required amount of hours of continuing education as set forth in subsections (i) and (j) of this section shall be granted for courses taught by the LCDC.
§140.417.Active Military Duty.
If an LCDC, CI, or CCS fails to timely renew his or her license because the licensee is called to or is on active duty with the armed forces of the United States, or ordered by proper authority to active duty, outside the state of Texas, the licensee or the licensee's authorized representative may request an additional amount of time, equal to the total amount of time on active duty, for the licensee to complete any continuing education or other renewal requirements. A written request for an extension of time to complete renewal requirements under this section must be received by the department by no later than 60 days after the licensee is discharged from active duty, but, whenever possible, shall be submitted before the commencement of active duty or the scheduled expiration of the applicable license.
(1) If the request is made by the licensee's authorized representative, the request shall include a copy of the appropriate power of attorney or written evidence of a spousal relationship.
(2) The written request shall include a copy of the official transfer orders of the licensee or other official military documentation showing that the licensee is called to or on active duty. The licensee shall also provide documentation of the date of discharge from active duty, either with the written request or upon discharge, whichever is later.
(3) If a timely request is made in accordance with this section, the department will exempt the licensee from payment of the late renewal fee.
(4) The written request shall include a current address and telephone number for the licensee or the licensee's authorized representative.
(5) A person eligible for an extension of time to complete renewal requirements under this section for a license issued under this subchapter may not provide services to which the applicable license under this subchapter applies after the regularly scheduled expiration of that person's license until such time, if any, as the licensee completes renewal of the license in accordance with this subsection.
§140.418.Continuing Education Standards.
(a) The department will accept continuing education (CE) hours that meet the criteria in this section. Hours that do not meet these criteria may be evaluated on a case-by-case basis.
(b) Subject to department review, the department will accept continuing education credits approved by:
(1) recognized state boards, including, but not limited to the Texas State Board of Social Work Examiners, the Texas State Board of Examiners of Marriage and Family Therapists, and the Texas State Board of Examiners of Professional Counselors;
(2) the National Association of Alcohol and Drug Abuse Counselors; and
(3) the Texas Certification Board for Addiction Professionals.
(c) All continuing education hours must be specific to substance use disorders and their treatment, or related to chemical dependency counseling, as defined by the KSA dimensions. Related education hours may include psychology, sociology, counseling, mental health, behavioral science, psychiatric nursing, ethics, and rehabilitation counseling.
(d) For LCDCs who live out of state, the department will also accept continuing education hours approved by other state or federal agencies.
(e) The department will monitor an LCDC's compliance with continuing education requirements by the use of random audit. Licensees will be notified in writing if they have been selected for a continuing education audit. Individual supporting documents of participation in continuing education courses are not to be submitted to the department unless written notification of an audit is received informing the licensee that he or she has been randomly selected for a document audit. Upon receipt of written notification of an audit, the licensee shall submit all appropriate documentation to substantiate compliance with the continuing education and documentation requirements as set forth in this section and §140.416 of this title (relating to LCDC License Expiration, Renewal and Continuing Education Requirements).
(f) Continuing education certificates must contain:
(1) applicant's name and license number;
(2) date the continuing education hours were completed;
(3) number of hours assigned to each course;
(4) course title;
(5) educational provider name and, if applicable, number;
(6) approving agency or entity's name; and
(7) name and signature of instructor or coordinator.
(g) The department will accept education hours from an accredited college or university.
(1) College transcripts must contain the official seal of the college and the signature of the registrar.
(2) One semester hour of college credit is equivalent to 15 continuing education hours. One quarter hour of college credit is equivalent to 10 continuing education hours.
(h) Independent study or distance learning courses must be guided and monitored by the instructor and include an evaluation of performance and/or participation verification. In addition, the course must be structured so that students have access to faculty or instructors for questions and assistance in the completion of such course work.
§140.419.Inactive Status.
(a) An LCDC may request to have his or her license placed on inactive status by submitting a written request and paying the inactive fee before the license expires. Inactive status shall not be granted unless the license is current and in good standing.
(b) A person on inactive status cannot perform activities outlined in the KSA dimensions, represent himself or herself as an LCDC, or act in the capacity of a QCC. A person is subject to investigation and enforcement action during the period of inactive status.
(c) Inactive status shall not exceed two years and is not renewable.
(d) To return to active status, the person shall submit a written request to reactivate the license, a completed renewal application form, the renewal application fee and the license renewal fee, and documentation of 20 hours of continuing education obtained within the inactive status period. The continuing education shall include the courses described in §140.416(k) of this title (relating to LCDC License Expiration, Renewal, and Continuing Education Requirements).
(e) An inactive license will automatically expire at the end of the two-year inactive period. Renewal of an expired inactive license shall be subject to the provisions set forth in §504.203 of the Act (relating to License Renewal).
§140.420.Peer Assistance Programs.
(a) The department may issue or renew, as applicable, an LCDC license to an individual convicted or placed on community supervision in any jurisdiction for a drug or alcohol offense described in §140.430 (relating to Criminal History Standards) if the department determines that the applicant has successfully completed participation in an approved peer assistance program.
(b) Peer assistance programs shall identify, assist, and monitor participating LCDCs whose ability to perform a professional service is impaired or likely to be impaired by abuse of or dependency on drugs or alcohol, so that the individuals may return to safe practice. An LCDC who meet the standard for participation shall be referred to in this section as an "impaired professional." Peer assistance programs offer support and assistance and have a rehabilitative emphasis rather than a disciplinary emphasis.
(c) To become an approved peer assistance program, a professional association shall:
(1) submit an application form prescribed by the department;
(2) submit a written description of the peer assistance program that includes:
(A) goals and objectives, including criteria for successful completion of the peer assistance program;
(B) target population;
(C) the plan for ensuring services are available throughout the state;
(D) how the following areas are to be addressed:
(i) identification of and intervention with impaired professionals;
(ii) assistance with accessing quality treatment;
(iii) monitoring, support, and evaluation of participants;
(iv) intervention in crises, including relapses; and
(v) support during the reentry by participants to professional practice or instructional roles.
(E) staffing plans, minimum staff qualifications by position, and planned staffing levels relative to numbers of participants.
(F) the plan for program quality assurance and self-evaluation; and
(G) the methods that will be utilized to promote and encourage use of the program.
(3) meet the minimum criteria established for peer assistance programs under Texas Health and Safety Code, Chapter 467 and Chapter 451 of this title, as well as any additional criteria set forth in this section and in Texas Occupations Code §504.057 for peer assistance programs for LCDCs. Each peer assistance program will remain subject to and comply with these provisions once approved. In the event of direct conflict between any of the provisions, the provisions of Texas Occupations Code, §504.057 and this section shall govern.
(d) Approval of the peer assistance program shall expire on the second anniversary of the date of approval. To renew the approval status, a professional association shall submit the materials as outlined in subsection (c) of this section.
(e) The peer assistance program shall comply with applicable Federal and State confidentiality laws and regulations, including, without limitation, Code of Federal Regulations, Title 42, Part 2 (relating to Confidentiality of Alcohol and Drug Abuse Patient Records) and Texas Health and Safety Code, Chapter 611 (relating to Mental Health Records).
(f) The peer assistance program shall notify the department, and, if required by Texas Health and Safety Code, §467.005 (relating to Reports), the person who made the report of the impaired professional to the peer assistance program, if the impaired individual fails to participate in the applicable program as required by the department.
(g) An impaired professional who is reported to a peer assistance program by the department or another third party shall, as a condition of participation in the program, give consent to the program that, at a minimum, authorizes the program to disclose the impaired person's failure to successfully complete the program to the department, and, as necessary for the peer assistance program to comply with its notification requirements, to the person who reported the impaired professional to the program.
(h) The department may revoke its approval of a program established by a professional association under this chapter, after a right to a fair hearing in accordance with §§1.41, 1.51 - 1.55 of this title (relating to Fair Hearing Procedures), if the authority determines that:
(1) the program does not comply with the criteria established by the department; and
(2) the professional association does not bring the program into compliance within a reasonable time, as determined by the department.
§140.421.Standards for the Training and Supervision of Counselor Interns.
(a) A CTI shall appoint a single training coordinator who is a qualified credentialed counselor (QCC). The CTI coordinator or a CCS shall oversee all training activities and ensure compliance with department requirements and rules relating to the training and supervision of CIs.
(b) The CTI or CCS shall establish acceptance criteria for CIs. No applicant shall be accepted to a CTI or accepted for CCS supervision without:
(1) documentation that the applicant is registered as a counselor intern with the department; and
(2) a signed ethics agreement that is consistent with the Professional and Ethical Standards in §140.423 of this title (relating to Professional and Ethical Standards).
(c) The CTI or CCS shall establish the following level system to classify counselor interns according to hours of supervised work experience:
(1) Level I: 0-1,000 hours of work experience;
(2) Level II: 1,001-2000 hours of work experience;
(3) Level III: 2,001-4,000 hours of work experience; and
(4) Graduate Status: over 4,000 hours of work experience.
(d) The CTI or CCS shall have a supervision structure that includes all intern levels. The CTI or CCS shall designate each intern's level in writing and provide the intern with a copy of the documentation.
(e) All counselor interns at a CTI must be under the direct supervision of a QCC as described in §140.422 of this title (relating to Direct Supervision of Interns). A CCS must directly supervise a counselor intern under the CCS's supervision, as described in §140.422 of this title.
(f) The CTI or CCS shall provide each Level I, II, and III intern with reading assignments and training activities for the supervised work experience that includes material in each KSA dimension.
(g) The CTI or CCS shall use the department's KSA evaluation tool to structure the intern's 4,000 hours of supervised work experience. The CI's supervising QCC, under the oversight and monitoring of the CTI coordinator, shall perform the CTI's responsibilities in the following paragraphs of this subsection.
(1) The CCS or CTI shall set weekly objectives with the CI based on areas targeted for improvement.
(2) The CCS or CTI shall provide the CI reading, computer, and/or video assignments that address areas needing improvement. The CTI or CCS shall allow the intern two hours per month to complete these assignments.
(3) The CCS or CTI shall monitor the intern's progress and provide verbal and written feedback during weekly supervision meetings.
(4) The intern shall complete a written KSA self-evaluation during the first 50 hours of work experience.
(5) The CCS or the CTI and the intern shall complete and discuss a written KSA evaluation at the completion of each level of experience (after 1,000 hours, 2,000 hours, and 4,000 hours).
(h) The CTI or CCS shall not allow a Level I, II, or III intern to accrue more than 40 hours of work experience per week.
(i) A graduate intern may continue to provide chemical dependency counseling services at a registered clinical training institution or with a CCS during that individual's maximum CI registration period.
(j) The CTI coordinator or CCS shall send the following documents directly to the department and provide the intern with copies within ten working days from the date the intern completes the required 4,000 hours or leaves the agency:
(1) the department's supervised work experience documentation form, fully completed and signed by the CCS or the CI's supervising QCC and the CTI Coordinator; and
(2) a copy of the intern's job description showing job responsibilities within the KSAs.
(k) All activities counted towards the intern's supervised work experience shall be within the scope of chemical dependency counseling services as defined by the KSAs.
(l) The CTI or CCS shall not approve hours for which the intern fails to substantially complete related activities and supervision assignments. Any failure to complete assignments shall be documented on the weekly supervision form.
(m) The CTI or CCS shall give each CI the department's CTI and CCS Assessment Form with instructions to complete the assessment and mail it directly to the department.
(n) The CTI or CCS shall use current department forms for all training and supervision documentation mandated by the department.
(o) The CTI shall ensure that each CTI coordinator and supervising QCC obtains three hours of continuing education in clinical supervision every two years.
(p) The CTI or CCS shall inform interns of licensure examination requirements and procedures, as well as examination schedules and information provided by the department.
(q) The CTI or CCS shall ensure that interns designate their status by using "counselor intern," "intern" or "CI" when signing client record entries, and that only registered CIs use this designation.
(r) The CTI or CCS shall maintain a complete file for each counselor intern for five years from the end of the CI's employment with a CTI or supervision by a CCS, as applicable, to include:
(1) letter of registration;
(2) ethics agreement signed by the intern;
(3) copies of KSA evaluations;
(4) documentation of all supervision activities;
(5) documentation of intern levels and accumulated hours at each level; and
(6) copy of the supervised work experience documentation form.
(s) The CTI or CCS shall give the intern a copy of all information contained in the intern file when the intern completes the required supervised work experience and/or leaves the agency.
§140.422.Direct Supervision of Interns.
(a) Direct supervision is oversight and direction of a counselor intern by a CCS, or either the CTI coordinator or the intern's supervising QCC at a CTI, which complies with the provisions in this section. Nothing in this section or subchapter shall be construed to authorize the provision of chemical dependency treatment without a license, where a license is required under Texas Health and Safety Code, Chapter 464 and Chapter 448 of this title.
(b) The CCS, or the CTI coordinator and the intern's supervising QCC at a CTI, shall assume responsibility for the actions of the intern within the scope of the intern's clinical training.
(c) If the intern has less than 2,000 hours of supervised work experience, the supervisor must be on site when the intern is providing services. If the intern has at least 2,000 hours of documented supervised work experience, the supervisor may be on site or immediately accessible by telephone.
(d) During an intern's first 1,000 hours of supervised work experience (Level I), the CCS, or the CTI coordinator or intern's supervising QCC at a CTI, shall:
(1) be on duty at the program site where the intern is working;
(2) observe and document the intern performing assigned activities at least once every two weeks (or at least once every 80 hours of the CI's work schedule);
(3) provide and document one hour of face-to-face individual or group supervision each week; and
(4) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the intern.
(e) During an intern's second 1,000 hours of supervised work experience (Level II), the CCS, or the CTI coordinator or intern's supervising QCC at a CTI, shall:
(1) be on duty at the program site where the intern is working;
(2) observe and document the intern performing assigned activities at least once every month (or at least once every 160 hours of the CI's work schedule);
(3) provide and document one hour of face-to-face individual or group supervision each week; and
(4) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the intern.
(f) An individual who has successfully completed the verbal and written portions of the licensing examination may be supervised in accordance with Level III standards set forth in subsection (g) of this section, but is still required to complete 4,000 hours of supervised work experience before achieving graduate status in the absence of a waiver under §140.408 of this title (relating to Requirements for LCDC Licensure).
(g) During an intern's last 2,000 hours of required supervised work experience (Level III), the CCS, or the CTI coordinator or intern's supervising QCC at a CTI, shall:
(1) be available by phone while the intern is working;
(2) observe and document the intern performing assigned activities as determined necessary by the CTI coordinator or CCS;
(3) provide and document one hour of face-to-face individual or group supervision each week; and
(4) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the intern.
(h) After an intern achieves graduate status, the CCS, or the CTI coordinator or intern's supervising QCC at a CTI, shall:
(1) be available by phone while the graduate intern is working;
(2) provide and document one hour of face-to-face individual or group supervision each week; and
(3) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the graduate intern.
(i) A supervisor must provide, at a minimum, an average of two hours of supervision-related activity per week per intern.
§140.423.Professional and Ethical Standards.
(a) This subsection applies to counseling records of a LCDC's private practice. Documentation of professional services rendered in another setting shall be created and maintained in accordance with any legal requirements for documentation applicable to the particular setting in which they were provided.
(1) The counselor shall establish and maintain a record for every client at the time of initial service delivery. The client record shall include:
(A) client identifying information;
(B) assessment results, including a statement of the client's problems and/or diagnosis;
(C) plan of care;
(D) documentation of all services provided, including date, duration, and method of delivery; and
(E) a description of the client's status at the time services are discontinued.
(2) The counselor shall maintain a record of all charges billed and all payments received.
(3) All entries shall be permanent, legible, accurate, and completed in a timely manner.
(4) All documents and entries shall be dated and authenticated. Authentication of electronic records shall be by a digital authentication key.
(5) When it is necessary to correct a record, the error shall be marked through with a single line, dated, and initialed by the counselor.
(6) The counselor shall protect all client records and other client-identifying information from destruction, loss, tampering, and unauthorized access, use or disclosure. Electronic client information shall be protected to the same degree as paper records and shall have a reliable backup system.
(7) The counselor shall comply with all applicable state and federal laws relating to confidentiality, including the requirements of Texas Health and Safety Code, Chapter 611 (relating to Mental Health Records) and Code of Federal Regulations, Title 42, Part 2 (relating to Confidentiality of Alcohol and Drug Abuse Patient Records).
(8) The counselor shall not deny clients access to the content of their records except as provided by law, including Texas Health and Safety Code, §611.0045 (relating to Right to Mental Health Record).
(9) Client records shall be kept for at least five years. Records of adolescent clients shall be kept for at least five years after the client becomes eighteen years of age.
(b) This subsection applies to an LCDC in private practice using the internet or telephone to provide chemical dependency counseling services.
(1) The counselor must reside in and perform the services from Texas.
(2) The department maintains its authority to regulate the counselor regardless of the location of the client.
(3) The counselor is subject to the applicable laws of other states and countries where the client may reside or receive services by electronic means. Such laws may limit the counselor's practice.
(4) The counselor's provision of services by electronic medium must comply with Code of Federal Regulations, Title 42, Part 2 (relating to Confidentiality of Alcohol and Drug Abuse Patient Records), Texas Health and Safety Code, Chapter 611 (relating to Mental Health Records), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as applicable.
(5) The counselor must be able to verify the identification of the client and ensure the client's appropriate age.
(6) If a counselor uses the Internet as the electronic means by which counseling is provided or transfers data through the Internet, the counselor must comply with the following:
(A) data may only be transferred using at least a 128-encryption;
(B) e-mail communication is restricted relating to client information and documentation; and
(C) the counselor must provide technical backup for system problems by providing a phone number to the client to call for technical support and a contingency plan for the client when a technical problem occurs.
(7) The counselor must provide services using audio or video in real time.
(8) The counselor must provide a description of all services offered to the client in writing and describe who is appropriate for the services. The description must include:
(A) a grievance procedure and provide a link to the department for filing a complaint when using the Internet and the toll-free number for the department when counseling by telephone;
(B) the counselor's credentials, education level, and training;
(C) a link to the licensure verification page when using the Internet and the toll-free number for the department when counseling by telephone;
(D) the difference between electronic counseling and traditional counseling; and
(E) the potential risk regarding clinical issues, security and confidentiality.
(9) Services may only be offered by licensed chemical dependency counselors.
(10) The counselor must provide an emergency contact person and phone number and emergency procedures to the client in writing.
(c) This subsection applies to any person licensed, certified, or registered under this subchapter.
(1) A licensee shall not discriminate against any client or other person on the basis of gender, race, religion, age, national origin, disability, sexual orientation, or economic condition.
(2) A licensee shall maintain objectivity, integrity, and the highest standards in providing services to the client.
(3) A licensee shall:
(A) in addition to complying with any other applicable reporting requirements, promptly report to the department any suspected, alleged, or substantiated incidents of abuse, neglect, or exploitation committed by oneself or another licensee under this subchapter;
(B) unless otherwise prohibited by law, promptly report to the department violations of Texas Occupations Code, Chapter 504 (relating to Chemical Dependency Counselors), or rules adopted under the Act, including violations of this subchapter by oneself or another licensee;
(C) recognize the limitations of the licensee's ability and shall not offer services outside the licensee's scope of practice or licensure or use techniques that exceed the person's license authorization or professional competence. In the course of treating the substance abuse/dependence issues of a client, the licensee may independently address family issues, co-occurring mental health issues and physical and sexual abuse issues of a client if the counselor demonstrates:
(i) 45 hours of education in each area; and
(ii) 2,000 hours of clinically supervised post-licensure work experience by a qualified professional; and
(D) make every effort to prevent the practice of chemical dependency counseling by unqualified or unauthorized persons.
(4) A licensee shall not engage in the practice of chemical dependency counseling if impaired by, intoxicated by, or under the influence of chemicals, including alcohol.
(5) A licensee shall uphold the law and refrain from unprofessional and unethical conduct. In so doing, the licensee shall:
(A) comply with all applicable laws and regulations;
(B) not make any claim, directly or by implication, that the person possesses professional qualifications, licensure, or affiliations that the person does not possess;
(C) include, as applicable, their current credentials when signing all professional documents;
(D) not mislead or deceive the public or any person; and
(E) refrain from any act that might tend to discredit the license or profession.
(6) A licensee shall:
(A) report information fairly, professionally, and accurately to clients, other professionals, the department, and the general public;
(B) maintain complete, accurate, and appropriate documentation of services provided;
(C) not submit or cause or allow to be submitted to a client or third party payer a bill for services that were not provided or were improper, unreasonable, or medically or clinically unnecessary, with the exception of a missed appointment for which notice has been given that a charge will be assessed, and as permitted by law concerning third party billing; and
(D) provide responsible and objective training and supervision to interns and subordinates under the LCDC, CCS, or CTI's supervision. This includes properly documenting supervision and work experience and providing supervisory documentation needed for licensure.
(7) In any publication, a licensee shall give written credit to all persons or works that have contributed to or directly influenced the publication.
(8) Licensees shall respect a client's dignity, and shall not engage in, or permit their employees or supervisees to engage in, any action that may injure the welfare of any client or person to whom the licensee is providing services. The licensee shall:
(A) make every effort to provide access to treatment, including advising clients about resources and services, taking into account the financial constraints of the client;
(B) remain loyal and professionally responsible to the client at all times, disclose the counselor's ethical code of standards, and inform the client of the counselor's loyalties and responsibilities;
(C) not engage in any activity that could be considered a professional conflict, and shall immediately remove oneself from such a conflict if one occurs;
(D) terminate any professional relationship or counseling services that are not beneficial, or are in any way detrimental to the client;
(E) always act in the best interest of the client;
(F) not abuse, neglect, or exploit a client;
(G) not engage in a sexual, personal, or business relationship with a client or a member of the client's immediate family (including any client receiving services from the licensee's employer) for at least two years after the client's services end;
(H) not request a client to divulge confidential information that is not necessary and appropriate for the services being provided;
(I) not offer or provide chemical dependency counseling, supervision, or related services, nor meet with a client, in settings or locations which are inappropriate, harmful to the client or others, or which would tend to discredit the profession of chemical dependency counseling; and
(J) refrain from using any method or engaging in any conduct that could be considered coercive or degrading to the client or another, including, without limitation, threats, negative labeling, or attempts to provoke shame or humiliation.
(9) A licensee shall protect the privacy of all clients and shall not disclose confidential information without express written consent, except as permitted by law. The licensee shall remain knowledgeable of and obey all state and federal laws and regulations relating to confidentiality of chemical dependency treatment records, and shall:
(A) inform the client, and obtain the client's consent, before tape-recording the client or allowing another person to observe or monitor the client;
(B) ensure the security of client records;
(C) not discuss or divulge information obtained in clinical or consulting relationships except in appropriate settings and for professional purposes which clearly relate to the case, to the extent authorized by law;
(D) avoid invasion of the privacy of the client;
(E) provide the client his/her rights regarding confidentiality, in writing, as part of informing the client in any areas likely to affect the client's confidentiality; and
(F) ensure the data requested from other parties is limited to information that is necessary and appropriate to the services being provided and is accessible only to appropriate parties.
(10) A licensee shall inform the client about all relevant and important aspects of the professional relationship between the client and the licensee, and shall:
(A) in the case of clients who are not their own consenters, inform the client's parent(s) or legal guardian(s) of circumstances that might influence the professional relationship;
(B) not enter into a professional relationship with members of the counselor's family, close friends or associates, or others whose welfare might be jeopardized in any way by such relationship;
(C) not establish a personal relationship with any client (including any individual receiving services from the licensee's employer) for at least two years after the client's services end;
(D) neither engage in any type or form of romantic or sexual behavior with a client (including any individual receiving services from the licensee's employer) for at least two years after the client's services end nor accept as a client anyone with whom they have engaged in romantic or sexual behavior; and
(E) not exploit relationships with clients for personal gain.
(11) A licensee shall treat other professionals with respect, courtesy, and fairness, and shall:
(A) refrain from providing or offering professional services to a client who is receiving chemical dependency treatment and/or counseling services from another professional, except with the knowledge of the other professional and the consent of the client, until treatment and/or counseling services with the other professional ends;
(B) cooperate with the department, professional peer review groups or programs, and professional ethics committees or associations, and promptly supply all requested or relevant information, unless prohibited by law; and
(C) ensure that the person's actions in no way exploit relationships with supervisees, employees, students, research participants or volunteers.
(12) Prior to providing treatment and/or counseling or substance abuse services, a licensee shall inform the client of the licensee's fee schedule and establish financial arrangements with a client. The counselor shall not:
(A) charge exorbitant or unreasonable fees for any service;
(B) pay or receive any commission, consideration, or benefit of any kind related to the referral of a client for services;
(C) use the client relationship for the purpose of personal gain, or profit, except for the normal, usual charge for services provided; or
(D) accept a private professional fee or any gift or gratuity from a client if the client's services are paid for by another funding source, or if the client is receiving treatment from a facility where the licensee provides services (unless all parties agree to the arrangement in writing).
§140.424.Complaint and Investigation Procedures.
(a) The provisions of this section shall apply to complaints against a licensee under this subchapter, notwithstanding the provisions of §442.102 of this title (relating to Complaints and Investigations).
(b) A person wishing to report an alleged violation of the Act or this subchapter may file a complaint with the department. All complaints shall be in writing and under oath.
(c) Upon receipt of a complaint, the department will send an acknowledgment letter to the complainant, together with the department's policies and procedures pertaining to complaint investigation and resolution. The department may accept an anonymous complaint if there is sufficient information for the investigation.
(d) The department will document, evaluate, prioritize, and investigate complaints based on the seriousness of the alleged violation and the level of client or participant risk, and will make any report to another agency required by law.
(e) Prior to or during an investigation, the department will request a response from the licensee or person against whom a complaint has been filed, and provide the department's policies and procedures pertaining to complaint investigation and resolution. The licensee or person against whom an alleged violation has been filed shall respond within 15 working days of receipt of the department's request.
(f) Pursuant to a department investigation regarding an alleged violation of the Act or this subchapter, a licensee shall produce records, documents and other evidence related to the license, registration, or approval to the department, upon request, unless otherwise prohibited by law. A licensee shall not interfere with the department's access to clients, witnesses or other parties.
(g) If it is determined that the matters alleged in the complaint are non-jurisdictional, or if the matters alleged in the complaint would not constitute a violation of the Act or this subchapter, the department may close the complaint and give written notice of the closure to the person against whom the complaint was filed and the complainant.
(h) The department may refer complaints outside its jurisdiction, or also within the jurisdiction of another licensing program within the department or of another agency, to the appropriate program or agency for action, as permitted by law.
(i) The department, at least quarterly and until final disposition of the complaint, shall notify the person filing the complaint and each person against whom the complaint was made of the status of the complaint, unless the notice would jeopardize an undercover investigation.
§140.425.Disciplinary Actions.
(a) The provisions of this section shall apply to all types of licensees under this subchapter, notwithstanding the provisions of §442.103 of this title (relating to Procedure for Contested Cases for Counselor and Facility Licenses), and shall not limit the authority of the department to take any other action against a license, registration, or certification, or the holder of, or applicant for, a license, registration, or certification, under §140.430 of this title (relating to Criminal History Standards), or as otherwise authorized by applicable statute or rule.
(b) The department may take action as authorized under subsection (c) of this section if an applicant for, or holder of, a license, registration, or certification issued under this subchapter:
(1) violates or assists another to violate the Act or a rule under this subchapter;
(2) circumvents or attempts to circumvent the Act or a rule under this subchapter;
(3) directly or indirectly participates in a plan to evade the Act or a rule under this subchapter;
(4) has a license to practice chemical dependency counseling in another jurisdiction refused, suspended, or revoked for a reason that the department determines would constitute a violation of the Act or a rule under this subchapter;
(5) engages in false, misleading, or deceptive conduct as defined by Business and Commerce Code, §17.46;
(6) engages in conduct that discredits or tends to discredit the profession of chemical dependency counseling;
(7) directly or indirectly reveals a confidential communication made to the person by a client or recipient of services, except as required by law;
(8) refuses to perform an act or service the person is licensed to perform under this subchapter on the basis of the client's or recipient's age, sex, race, religion, national origin, color, or political affiliation; or
(9) commits an act for which liability exists under Civil Practice and Remedies Code, Chapter 81 (Relating to Sexual Exploitation By Mental Health Services Provider).
(c) Where grounds exist to take action against a person, against a license, certification, or registration issued under this subchapter, or against an applicant or holder of a license, certification, or registration issued under this subchapter, the department may:
(1) deny, refuse to issue, or refuse to renew a license, certification, or registration;
(2) revoke or suspend a license, certification, or registration;
(3) probate a suspension of a license, certification, or registration;
(4) impose an administrative penalty against a person who violates the Act or a rule under this subchapter; or
(5) issue a reprimand against the applicable license holder.
(d) The department will determine the length of the probation or suspension. If the department probates the suspension of a license, certification, or registration, the department may require the holder of the applicable license to:
(1) report regularly to the department on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the department; or
(3) complete additional educational requirements, as required by the department to address the areas of concern that are the basis of the probation.
(e) An individual whose license, registration, or certification is revoked under this subchapter is not eligible to apply for a license, registration, or certification under this subchapter for a minimum of two years after the date of revocation. The department may consider the findings that resulted in revocation and any other relevant facts in determining whether to deny the application under this section, or as otherwise permitted by law, if an otherwise complete and sufficient application for a license, registration, or certification is submitted after two years have elapsed since revocation.
(f) A voluntary surrender accepted by the department in response to a complaint under §140.428 of this title (relating to Voluntary Surrender of License, Certification, or Registration In Response to a Complaint) shall be deemed to be the result of a formal disciplinary action as provided for in that section.
(g) The department, upon determination that grounds may exist to take disciplinary action, shall issue a notice of violation notifying the respondent of the proposed action.
(1) The notice letter shall be sent via regular first-class and certified mail to the respondent's address of record.
(2) The notice shall specify:
(A) the statutes, rules, or orders allegedly violated;
(B) the factual basis of the alleged violations;
(C) the disciplinary action the department intends to take; and
(D) notice of an opportunity for a hearing to be held under the Administrative Procedure Act, Texas Government Code, Chapter 2001.
(3) If the department is proposing to assess an administrative penalty, the letter shall also inform the respondent of the amount of the proposed penalty and of the opportunity for a hearing on the occurrence of the violation, the amount of the penalty, or both.
(4) The letter shall also include the following notices:
(A) If the respondent does not request a hearing on or before the 20th day after notice is effective, the allegations will be deemed true and the department will issue a default final order implementing the proposed action.
(B) If the respondent requests a hearing but fails to appear at the scheduled hearing, the allegations will be deemed true and the State Office of Administrative Hearings will recommend a default proposal for decision to implement the proposed action.
(C) Notice is effective three days after the date of mailing.
(h) A respondent must submit a timely written request for a hearing to avoid having the allegations in the notice letter deemed true and a default order implementing the proposed action issued by the department. The request for hearing is timely if filed with the department or postmarked on or before the 20th day after the notice is effective. If the respondent fails to timely file a request for a hearing, the factual allegations of the notice letter may be deemed true and shall form the basis of a default final order by the department making findings of fact and conclusions of law consistent with the notice of violation, and implementing the proposed action.
(i) The department shall implement a final order to suspend a license issued under this subchapter for failure to pay child support as provided by the Texas Family Code, Chapter 232.
§140.426.Administrative Penalties.
(a) The provisions of this section shall apply to administrative penalties proposed or assessed against any person for violation of the Act or a rule under this subchapter, notwithstanding the provisions of §442.104 of this title (relating to Administrative Penalties for Licensed Facilities and Counselors and Offender Education Programs).
(b) The amount of an administrative penalty shall be based on the following criteria:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice requires.
(c) The seriousness of a violation shall be categorized by one of the following severity levels:
(1) Level I--violations in which harm or other adverse impact to public health, safety, or welfare has actually occurred or is likely to occur and/or recur;
(2) Level II--violations that demonstrate a potential for harm or other adverse impact to public health, safety, or welfare; or
(3) Level III--violations that are not likely to substantially affect public health, safety, or welfare.
(d) The range of administrative penalties by severity levels is as follows for each violation:
(1) Level I--up to $1000 per day;
(2) Level II--up to $500 per day; or
(3) Level III--up to $100 per day.
(e) Subsequent violations of the same or similar nature in the same severity level for which an administrative penalty has previously been imposed may be categorized at the next higher severity level, based upon the repeated violation. Subsequent Level I violations of the same or similar nature for which an administrative penalty has previously been imposed at the Level I severity level may be assessed a higher penalty within that severity level, up to $1,000 per day per violation, based upon the repeated violation.
§140.427.Informal Disposition.
(a) At any stage of a disciplinary case, informal disposition of a complaint or contested case involving an applicant or licensee may be made through an informal conference held to determine whether the matters in controversy can be resolved without further proceedings, including by agreed order.
(b) In any case where a notice of violation has been issued proposing disciplinary action against an applicant or licensee, that person will be given the opportunity to attend an informal conference to show compliance with the law, pursuant to Texas Government Code §2001.054 (relating to Licenses), prior to a requested hearing. If the applicant or licensee fails to appear at a scheduled informal conference, the department may deem that person to have waived the right to an informal conference and may proceed to hearing.
(c) An informal conference shall be voluntary for the applicant or licensee and shall not be a prerequisite to a formal hearing.
(d) The conference shall be informal and shall not follow the procedures established in this subchapter for contested cases and formal hearings.
(e) The department will establish the time, date and place of the informal conference, and provide written notice to the licensee or applicant. Written notice will be provided no less than 10 business days prior to the date of the informal conference at the last known address of the licensee or applicant.
(f) The applicant or licensee may be represented by legal counsel at the informal conference. The department's legal counsel and appropriate staff will be present at the conference.
(g) At the conclusion of the informal conference, the department may propose an informal disposition of the complaint or contested case. The proposal may include proposed entry of an agreed order imposing any disciplinary action authorized by the Act or this subchapter. The department may also conclude that the department lacks jurisdiction; that the matter should be referred for further investigation; that the complaint should be closed without action; or that the department will proceed to a contested case hearing on the proposed action, if one has been requested by the applicant or licensee, in accordance with §140.429 of this title (relating to Procedures for Contested Cases).
(h) The licensee or applicant may either accept or reject the department's proposal at the informal conference. If the recommendations are accepted, a proposed agreed order will be forwarded to the licensee or applicant, or that person's attorney. The order will include any agreed findings of fact and conclusions of law. If the licensee or applicant fails to return the signed order within 20 days of receipt of the proposed order, or within another time frame specified or agreed to by the department, the department's proposed order will be deemed withdrawn and the department may proceed to a contested case hearing on the action originally proposed, if the applicant or licensee has requested one, or otherwise proceed with appropriate action against the applicant or licensee. The licensee or applicant will be deemed to have received the proposed agreed order three days after mailing.
§140.428.Voluntary Surrender of License, Certification, or Registration In Response to a Complaint.
(a) When a licensee has offered the surrender of that person's license in response to a complaint, the department will consider whether to accept the surrender of the license. A licensee will be deemed to have offered the surrender of that person's license in response to a complaint when the surrender is offered after the licensee has received notice that a complaint has been received by the department. A licensee will be deemed to have received notice that a complaint has been received by the department three days after a letter notifying the licensee is mailed by the department.
(b) Surrender of a license without the department's acceptance thereof shall not deprive the department of jurisdiction under the Act, this subchapter, or other applicable law.
(c) When the department accepts the surrender of a license offered in response to a complaint, the license surrender is deemed to be the result of a formal disciplinary action and an order shall be prepared accepting the license surrender on that basis.
§140.429.Procedures for Contested Cases.
(a) The provisions of this section shall apply to licensees under this subchapter, notwithstanding the provisions of §442.103 of this title (relating to Procedure for Contested Cases for Counselor and Facility Licenses).
(b) Where the department has issued a notice of violation that has not been resolved by informal disposition and the respondent has timely requested a hearing, the department will proceed to a hearing under the APA, Texas Government Code, Chapter 2001; SOAH Rules of Procedure, 1 Texas Administrative Code, Chapter 155; and formal hearing procedures set forth at §§1.21, 1.23, 1.25, and 1.27 of this title.
(c) The department will provide written notice of the hearing to the respondent by first class mail and certified mail, return receipt requested, at respondent's last known address as reflected in the department's address of record for the respondent. A Notice of Hearing that complies with the requirements of Texas Government Code, §2001.051 and §2001.052 (relating to Opportunity for Hearing and Participation; Notice of Hearing and Contents of Notice), and 1 Texas Administrative Code §155.27 (relating to Notice of Hearing), will be provided at least ten days before the date of the hearing. Respondent's receipt of the Notice of Hearing at least ten days before the date of the hearing will be presumed if the department mailed the Notice of Hearing at least ten days before the date of the hearing, and allowed an additional three days for mailing.
(d) If the respondent fails to appear at a scheduled SOAH hearing after being given proper notice of the hearing at respondent's last known address as reflected in the department's address of record for the respondent, the department may move for dismissal of the case from the SOAH docket, without prejudice, to allow for informal disposition of the case by default order, as provided for in §1.25 of this title (relating to Default). Based upon the respondent's failure to appear after proper notice of the hearing, the factual allegations of the notice letter may be deemed true and shall form the basis of a final default order by the department making findings of fact and conclusions of law consistent with the notice of violation, and implementing the proposed action.
(e) If a respondent makes a written request to the department for a transcript of a SOAH proceeding, the department will assess the cost of the transcript to that respondent. If there were multiple respondents to the proceeding, the department will assess the cost proportionally among those respondents requesting a transcript. Where a respondent appeals a final department decision in a contested case, the respondent shall pay the cost of preparation of the original or a certified copy of the record that is required to be sent to the reviewing court, and such charge may be assessed against respondent by the court in accordance with the Texas Rules of Civil Procedure as a court cost.
§140.430.Criminal History Standards.
(a) The department reviews the criminal history of each applicant for initial licensure, certification, and registration. Reviews are also conducted when the department receives information that a licensee has been charged, indicted, placed on deferred adjudication, community supervision, or probation, or convicted of an offense described in subsection (d) of this section.
(b) An applicant shall disclose and provide complete information about all misdemeanor and felony charges, indictments, deferred adjudications, episodes of community supervision or probation, and convictions. Failure to make full and accurate disclosure may be grounds for application denial or disciplinary action, including revocation, against the applicant for, or holder of, a license, registration, or certification.
(c) The department obtains criminal history information from the Texas Department of Public Safety, including information from the Federal Bureau of Investigations (FBI).
(d) For purposes of this section, the department has identified the following offenses as offenses directly related to the duties and responsibilities of the licenses, certifications, and registrations issued under this subchapter, and has categorized them according to the seriousness of the offense. The provisions of this section shall not limit the authority of the department to take any other action against a license, registration, or certification, or the holder of, or applicant for, a license, registration, or certification, as otherwise authorized by applicable statute or rule.
(1) Category X includes:
(A) capital offenses;
(B) sexual offenses involving a child victim;
(C) felony sexual offenses involving an adult victim who is a client (one or more counts);
(D) multiple counts of felony sexual offenses involving any adult victim; and
(E) homicide 1st degree.
(2) Category I includes:
(A) kidnapping;
(B) arson;
(C) homicide lesser degrees;
(D) felony sexual offenses involving an adult victim who is not a client (single count); and
(E) attempting to commit crimes in Category I or X.
(3) Category II includes felony offenses that are not listed separately in this section and that result in actual or potential physical harm to others and/or animals.
(4) Category III includes:
(A) class A misdemeanor alcohol and drug offenses;
(B) class A misdemeanor offenses resulting in actual or potential physical harm to others or animals;
(C) felony alcohol and drug offenses; and
(D) all other felony offenses not listed separately in this section.
(5) Category IV includes:
(A) class B misdemeanor alcohol and drug offenses; and
(B) class B misdemeanor offenses resulting in actual or potential physical harm to others or animals.
(e) Except as provided in subsection (j) of this section, the department shall deny the initial or renewal licensure, certification, or registration application of a person who has been convicted or placed on community supervision in any jurisdiction for a:
(1) category X offense during the person's lifetime;
(2) category I offense during the 15 years preceding the date of application;
(3) category II offense during the ten years preceding the date of application;
(4) category III offense during the seven years preceding the date of application; or
(5) category IV offense during the five years preceding the date of application.
(f) The department shall deny the initial or renewal license, certification, or registration application of a person who has been found to be incapacitated by a court on the basis of a mental defect or disease.
(g) When a person's application is denied under subsection (e) or (f) of this section, the person may reapply when:
(1) the person receives a full pardon based on the person's wrongful conviction;
(2) the timeframes established in subsection (e) of this section have been met; or
(3) the person who had been found to be incapacitated is found to be no longer incapacitated, in which case the provisions of this section applicable to the status of the charge and prosecution at that time will apply.
(h) The department shall suspend a license, certification, or registration if the department receives written notice from the Texas Department of Public Safety or another law enforcement agency that the individual has been charged, indicted, placed on deferred adjudication, community supervision, or probation, or convicted of an offense described in subsection (d) of this section. The licensee will remain subject to applicable renewal requirements during the period of suspension. Any license renewed during that period will remain suspended upon renewal and until the time frames set forth in subsection (e) of this section have been met.
(1) The department shall send notice stating the grounds for summary suspension by certified mail to the license, certification, or registration holder at the address listed in the department's records. The suspension is effective three days after the date of mailing.
(2) If no other bar to licensure, certification, or registration exists at the time, the department will restore the person's license, certification, or registration upon receipt of official documentation that the charges have been dismissed or the person has been acquitted, except that, where the dismissal follows a deferred adjudication, the time frames set forth in subsection (e) of this section will apply.
(i) The department will defer action on the application of a person who has been charged or indicted for an offense described in subsection (d) of this section. If the person is convicted or placed on community supervision for the offense, subsection (e) of this section will apply. If the charges are dismissed or the person is acquitted, the application will be processed without adverse action under this section on the basis of those charges. However, the department may consider the facts and evidence underlying the charge in determining whether adverse action against the applicant might be warranted under §140.425 of this title (relating to Disciplinary Actions).
(j) Notwithstanding subsection (e) of this section, if no other bar to LCDC initial licensure or renewal exists at the time, the department may issue or renew an LCDC license to a person convicted or placed on community supervision in any jurisdiction, within the timeframes set forth in subsection (e) of this section, for a drug or alcohol offense described in subsection (d) of this section, if the department determines that the individual has successfully completed participation in a peer assistance program approved by the department. When an LCDC licensure or renewal applicant successfully reaches the re-entry phase of a peer assistance program, the department may grant a temporary "re-entry approval," with a limited term and any appropriate conditions, set in conjunction with the peer assistance program, based upon the applicant's needs and the anticipated length of the re-entry phase of the peer assistance program for the applicant. At the end of the term of the re-entry approval, the department may extend the term if the applicant is still successfully participating in the re-entry phase of the peer assistance program, may grant an LCDC license or renewal license if the department determines that the LCDC has successfully completed the peer assistance program, or shall deny the license under subsection (e) of this section, if the LCDC has failed to successfully complete the peer assistance program.
(k) A person whose license, certification, or registration has been denied or suspended under this section may only appeal the action if:
(1) the person was convicted or placed on community supervision; and
(2) the appeal is based on the grounds that the timeframes defined in subsection (e) of this section have been met.
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 February 25, 2008.
TRD-200801120
Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: April 6, 2008
For further information, please call: (512) 458-7111 x6972
Subchapter B. CARE OF ANIMALS BY CIRCUSES, CARNIVALS, AND ZOOS
The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), proposes amendments to §§169.41 - 169.48, concerning the care of animals by circuses, carnivals, and zoos.
BACKGROUND AND PURPOSE
These proposed rules are necessary to comply with Occupations Code, Chapter 2152, (formerly Health and Safety Code, Chapter 824), "Regulation of Circuses, Carnivals, and Zoos," §2152.051.
Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 169.41 - 169.48 have been reviewed, and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are mandated.
Specifically, the sections cover purpose, definitions, facilities for housing the animals, transportation of animals, food and water requirements, care in transit, licenses, and state inspection agents.
After carefully considering the alternatives, the department believes the proposed rules as amended are the best method of implementing the statute to protect the public health with rules for the care of animals by circuses, carnivals, and zoos in the State of Texas.
SECTION-BY-SECTION SUMMARY
The proposed amendments to §169.41 - 169.48 modify the language to make it more concise, update the definitions, add a statutory citation, revise the legacy agency names and department areas, and replace "director" with "manager" for the Zoonosis Control Branch.
The proposed revisions to the sections update and clarify language to enable those subject to the sections to more readily comply. The amendments promote humane conditions for these animals and promote public health and safety.
FISCAL NOTE
Martha McGlothlin, Section Director, Community Preparedness Section, has determined that, for each year of the first five-year period that the sections will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. McGlothlin has also determined that there will be no effect on small businesses or micro-businesses required to comply with the sections as proposed. This was determined by interpretation of the rules that small businesses and micro-businesses will not be required to alter their business practices in order to comply with the amendments to these sections. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
In addition, Ms. McGlothlin has also determined that, for each year of the first five years the sections are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of clarifying language in the sections will be to promote humane conditions for animals and public health and safety.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The department has determined that the proposed amendments do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Tom Sidwa, DVM, Department of State Health Services, Community Preparedness Section, Zoonosis Control Branch, MC 1956, P.O. Box 149347, Austin, Texas 78714-9347, or by e-mail to Tom.Sidwa@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, Chapter 2152, "Regulation of Circuses, Carnivals, and Zoos," §2152.051, which requires the adoption of rules to administer the chapter, and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department. Review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 2152; Government Code, Chapters 531 and 2001; and Health and Safety Code, Chapter 1001.
§169.41.Purpose.
The purpose of these rules is to establish standards regarding
the care of animals in circuses, carnivals, and zoos
that
[
which
] will promote humane conditions for these animals and
public health and safety.
§169.42.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) (No change.)
[
(2)
Board--Texas Board of Health.]
[
(3)
Commissioner--Commissioner of the Texas Department of Health.]
(2)
[
(4)
] Department--
Department of State Health Services
[
Texas Department of Health (TDH)
].
(3)
[
(5)
] Housing facility--Any
room, building, or area used to contain a primary enclosure or enclosures.
(4)
[
(6)
] Primary enclosure--Any
structure used to immediately restrict an animal or animals to a limited
amount of space, such as a room, pen, run, cage, compartment, or hutch.
(5)
[
(7)
] Sanitize--To make
physically clean and to destroy disease-producing organisms.
(6)
[
(8)
]
Zoonosis Control Branch (ZCB)
[
Zoonosis Control Division (ZCD)
]--
Branch
[
Division
] of the
Department of State Health Services
[
Texas Department of Health
] to which the responsibility for
administering
[
implementing
]
these rules is assigned.
§169.43.Facilities for Housing the Animals.
(a) Housing facilities shall:
(1) (No change.)
(2) have reliable and adequate electric power, if required
to comply with other provisions of this subsection, and
have
adequate potable water [
shall be
] available;
(3) - (5) (No change.)
(b) Indoor facilities shall:
(1) (No change.)
(2) be adequately ventilated to provide for the health
and comfort of the animals at all times by providing fresh air either
by means of windows, doors, vents, or air conditioning[
;
]
and be ventilated so as to minimize drafts, odors, and moisture condensation;
(3) - (5) (No change.)
(c) Outdoor holding facilities shall:
(1) - (2) (No change.)
(3) be constructed in such a manner that they will protect the
animals
[
animal
];
(4) - (5) (No change.)
(d) Primary enclosures shall:
(1) - (2) (No change.)
(3) enable
each
[
the
] animal to remain dry and clean;
(4)
be constructed so as to protect the [
animal's
]
body and extremities
of every animal
from injury; and
(5) (No change.)
(e) Feeding shall:
(1) be at least once a day except as otherwise directed by a licensed veterinarian , as defined in the Texas Health and Safety Code, §826.002, and with food free from contamination, wholesome, palatable, and of sufficient quality and nutritive value to meet the normal daily requirements for the condition and size of the animal(s); and
(2) be in food receptacles accessible to each animal and located so as to minimize contamination by excreta.
(A) - (B) (No change.)
(C) Self feeders may be used for feeding dry foods to animals acclimated to their use , but they must be kept clean and sanitary to prevent molding, deterioration, or caking of feed.
(f) - (i) (No change.)
§169.44. Transportation of Animals.
(a) Primary enclosure construction. All compartments, transport cages, cartons, or crates shall be constructed such that:
(1) structural strength and size are sufficient to contain the live
animal(s)
[
animals
] and to
withstand the normal rigors of transportation.
(2) - (6) (No change.)
(7) the size is adequate to allow
each
[
the
] animal to turn about freely and to make normal postural adjustments,
except when restriction of movement is essential to prevent danger
to
any
[
the
] animals, handlers, or other persons; and
(8) (No change.)
(b) Transportation in primary enclosures. Primary enclosures
used to transport live
animal(s)
[
animals
] shall:
(1) - (3) (No change.)
(c) Primary conveyances. The animal cargo space of primary conveyances transporting live animals shall:
(1) be designed and constructed to protect the health[
,
] and ensure the safety and comfort of the live animals contained
therein at all times;
(2) - (6) (No change.)
§169.45.Food and Water Requirements in Transit .
(a) Each live animal shall be fed a sufficient quantity
of food at least once in each 24-hour period unless there are special
instructions given by a licensed veterinarian. The food shall be free
from contamination, wholesome, palatable, and of sufficient quality
and nutritive value to meet the normal requirements for the condition
and size of the
animal
[
animal(s)
].
(b) Potable water shall be provided to each animal at all times or at least twice daily for periods of not less than one hour, except as directed by a licensed veterinarian.
§169.46.Care in Transit.
The carrier, driver, or other employee shall be responsible to:
(1) - (4) (No change.)
(5) provide protection to live animals
,
allowing them to remain dry during
any form of precipitation
[
rain or snow
].
§169.47.Licenses.
(a) Types.
(1) A regular operating license is issued for a period
of two years from date of issue or such lesser period as the
Executive Commissioner of the Health and Human Services Commission
[
board
] shall deem appropriate for circuses or animal variety shows
which are not resident in Texas and which are not exempt by law.
(2) A temporary operating license
may be
[
is
] issued
and is valid
until a regular license is issued or
unless
the temporary license is revoked for cause
and is valid for two years from the date of application or until approval
or denial of a regular operating license.
(b) - (c) (No change.)
(d) Information. Application, renewal forms, and/or
information may be obtained by contacting
Texas Department of State Health Services, Zoonosis Control Branch
[
Texas Department of Health, Zoonosis Control Division
], 1100 West 49th Street, Austin, Texas 78756.
(e) Fees. The following fees shall accompany each application for an operating license and/or renewal of a license:
(1) 1 animal to 25 animals--$400;
(2) - (4) (No change.)
(f) (No change.)
(g) Any facility that does not meet required standards
will not be licensed by
the department
[
TDH
].
§169.48.State Inspection Agents.
Each agent inspecting circuses, carnivals, or zoos under Occupations
Code, Chapter 2152, will be approved by the
manager, Zoonosis Control Branch
[
director, Zoonosis Control Division
].
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 February 22, 2008.
TRD-200801073
Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: April 6, 2008
For further information, please call: (512) 458-7111 x6972
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Department of State Health Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), proposes the repeal of §§450.100 - 450.126, concerning the licensing and regulation of chemical dependency counselors.
BACKGROUND AND PURPOSE
The repeals are necessary to implement amendments to Texas Occupations Code, Chapter 504, made by Senate Bill (SB) 155, which was adopted by the 80th Legislature, Regular Session, 2007. New and amended rule provisions implementing SB 155 include provisions relating to the approval of peer assistance programs, the certification of clinical supervisors, modifications to the continuing education requirement for renewal of the licensed chemical dependency counselor (LCDC) license, the recognition of other certifications on the LCDC license, and making all persons now licensed, registered, or certified under Texas Occupations Code, Chapter 504, subject to the same extent to disciplinary action and to the criminal history standards developed under that chapter. The repeal and new rules also consolidate existing Professional Licensing and Certification Unit program rules into 25 Texas Administrative Code (TAC) Chapter 140, Health Professions Regulation.
Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001, (Administrative Procedure Act). Sections 450.100 - 450.126 have been reviewed and the department has determined that, except as amended under the proposed new rules, the reasons for adopting the sections continue to exist because rules on this subject are needed. However, the department is proposing to repeal the existing sections and adopt the rules in 25 TAC Chapter 140, Health Professions Regulation.
SECTION-BY-SECTION SUMMARY
The repeal of §§450.100 - 450.126 is necessary in order to combine the Professional Licensing and Certification Unit rules in one chapter, 25 TAC Chapter 140, Health Professions Regulation.
FISCAL NOTE
Cindy Bourland, Manager, Professional Licensing and Certification Unit, has determined that for each year of the first five-year period that the repeals are in effect, there will be no fiscal implications to state or local governments as a result of repealing the sections as proposed.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Bourland has also determined that there will be no adverse economic impact on small businesses or micro-businesses as a result of the repeals as proposed. This determination was made because the repeals do not impose any new requirements that impose a cost on small businesses, as defined by Government Code, §2006.001. Small businesses and micro-businesses will not be required to alter their business practices based upon the repeals. There is no anticipated economic cost to individuals as a result of the repeals as proposed. There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
In addition, Ms. Bourland has also determined that for each year of the first five years the sections are in effect, the public will benefit from the adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections is to protect and promote public health, safety, and welfare, by regulating licensed chemical dependency counselors, certified clinical supervisors, clinical training institutions, and counselor interns. In addition, approved peer assistance programs provided for by the rules will encourage impaired counselors to obtain assistance for their impairment, and the availability of certified clinical supervisors will increase the training and supervision options for counselor interns and thereby facilitate the licensure of additional licensed chemical dependency counselors.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the pubic health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The department has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Stewart Myrick, Program Director, Licensed Chemical Dependency Counselor Program, Professional Licensing and Certification Unit, MC 1982, Division for Regulatory Services, Department of State Health Services, 1100 West 49th Street, P.O. Box 149347, Austin, Texas 78756, (512) 834-4565, or by e-mail to lcdc@dshs.state.tx.us. When submitting comments by e-mail, please indicate "Comments on Proposed Rules" in the subject line. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed repeals have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The proposed repeals are authorized by Texas Occupations Code, §504.051, which authorizes rulemaking necessary to carry out the duties established under Texas Occupations Code, Chapter 504, the establishment of standards of conduct and ethics for Chapter 504 licensees, and the establishment of additional criteria for peer assistance programs for chemical dependency counselors; Texas Occupations Code, §504.053, which authorizes the Executive Commissioner of the Health and Human Services Commission to set application, examination, license renewal, and other fees in amounts sufficient to cover the costs of administering Chapter 504; and by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
The proposed repeals affect the Texas Occupations Code, Chapter 504; Health and Safety Code, Chapter 1001; and Government Code, Chapter 531. Review of the rules implements Government Code, §2001.039.
§450.100.Definitions.
§450.101.License Required.
§450.102.Scope of Practice.
§450.103.Department Review.
§450.104.Fees.
§450.105.Licensure Application Standards and Registration.
§450.106.Requirements for Counselor Intern Registration.
§450.107.Standards for 270 Educational Hours.
§450.108.Practicum Standards.
§450.109.Education and Experience Exemptions/Waivers.
§450.110.Requirements for Licensure.
§450.111.Standards for Supervised Work Experience.
§450.112.Examination.
§450.113.Issuing Licenses.
§450.114.Licensure through Reciprocity.
§450.115.Criminal History Standards.
§450.116.License Expiration and Renewal/Active Military Duty.
§450.117.Continuing Education Standards.
§450.118.Inactive Status.
§450.119.Documentation.
§450.120.Counseling Through Electronic Means.
§450.121.Ethical Standards.
§450.122.Actions Against a License.
§450.123.Clinical Training Institution (CTI) Registration.
§450.124.Clinical Training Institution (CTI) Standards.
§450.125.Direct Supervision of Interns.
§450.126.Intern Violations.
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 February 25, 2008.
TRD-200801121
Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: April 6, 2008
For further information, please call: (512) 458-7111 x6972