Proposed Rules Title 22

TITLE 22. EXAMINING BOARDS

PART 6. TEXAS BOARD OF PROFESSIONAL ENGINEERS

CHAPTER 131. ORGANIZATION AND ADMINISTRATION

SUBCHAPTER F. ADMINISTRATION

22 TAC §131.85

The Texas Board of Professional Engineers (Board) proposes an amendment to §131.85, relating to Board Rules Procedures. The proposed amendment is related to minimum requirements for the Board to accept a petition from the public for the development or adoption of a Board rule.

The proposed rule would require the Board to accept a petition for proposal, adoption, deletion, or amendment of a Board rule submitted by a minimum of 25 individuals or an association representing at least 25 individuals. The 25 person minimum is in line with Government Code §2001.029 regarding public hearings.

The Board welcomes all input on the scope and effectiveness of its rules. The purpose of this amendment is merely to set forth the standard for a formal petition requiring action by the Board.

Lance Kinney, P.E., Deputy Executive Director for the Board, has determined that for the first five-year period the proposed amendment is in effect there is no fiscal impact for the state and local government as a result of enforcing or administering the section as amended. There is no additional cost to licensees or other individuals. There is no adverse fiscal impact to the estimated 1,000 small or 5,300 micro businesses regulated by the Board. A Regulatory Flexibility Analysis is not needed because there is no adverse economic effect to small or micro businesses.

Mr. Kinney also has determined that for the first five years the proposed amendment is in effect, the public benefit anticipated as a result of enforcing the proposed amendment is an efficient rulemaking process by the Board and to prevent frivolous or unsupported attempts to compel the Board to make or change rules.

Comments may be submitted no later than 30 days after the publication of this notice to Lance Kinney, P.E., Deputy Executive Director, Texas Board of Professional Engineers, 1917 IH-35 South, Austin, Texas 78741 or faxed to his attention at (512) 440-0417.

The amendment is proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendment.

§131.85.Board Rules Procedures.

(a) (No change.)

(b) Petition for Adoption of Rules. The board shall accept a petition submitted by at least 25 persons or by an association having at least 25 members [~~Any interested person can request the board~~] to adopt, delete, or amend a rule by filing a petition with the executive director, accompanied by any fee required by statute or board rules. The petition must be filed with the executive director at least 30 days and not more than 60 days prior to a regular board meeting at which board action will be taken. Such a petition will include, but need not be limited to, the following.

(1) Identity information. Full name and complete mailing address and telephone number of the petitioner on whose behalf the petition is filed.

(2) Reference. Reference to the rule which it is proposed to make, change or amend, or delete, so that it may be identified and prepared in a manner to indicate the word, phrase, or sentence to be added, changed, or deleted from the current text, if any. The proposed rule should be presented in the exact form in which it is to be published, adopted, or promulgated.

(3) A suggested effective date. The desired effective date should be stated.

(4) Justification. Justification for the proposed action in narrative form with sufficient particularity to fully inform the board and any interested party of the facts upon which the petitioner relies, including the statutory authority for the promulgation of the proposed rule.

(5) Desired effect of proposal. Include a brief statement detailing the desired effect to be achieved by the proposed rule, change, or amendment or deletion.

(6) Summary. A concise summary of the proposed rule, change, or amendment.

(7) Signatures. Signatures on the petition of the petitioners [~~petitioner~~] and/or the attorney or representative of the petitioners [~~petitioner~~].

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 March 30, 2009.

TRD-200901241

Dale Beebe Farrow, P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: May 10, 2009

For further information, please call: (512) 440-7723

CHAPTER 133. LICENSING

SUBCHAPTER B. PROFESSIONAL ENGINEER LICENSES

22 TAC §133.11

The Texas Board of Professional Engineers (Board) proposes an amendment to §133.11, relating to Types of Licenses. The proposed amendment is related to minimum requirements for the Board to accept a petition from the public for the development or adoption of a Board rule.

The proposed rule change relates to temporary licenses obtained via international agreements such as the North American Free Trade Agreement (NAFTA). Certain applicants have attempted to use the temporary licensure process to obtain a de facto permanent license, either through continual reapplication and renewal of the temporary license or by claiming a temporary license qualifies for licensure as a Former Texas License Holder.

The proposed rule clarifies that a temporary license has a maximum duration of three years and that once a temporary license has expired, a former temporary license holder cannot apply for a subsequent temporary license. In addition, the holder of a temporary license can start the standard license process while still holding a temporary license.

Mr. Kinney also has determined that for the first five years the proposed amendment is in effect, the public benefit anticipated as a result of enforcing the proposed amendment is the clarification of the temporary licensure process and verifying that licensees are qualified to practice engineering in Texas.

No other statutes, articles or codes are affected by the proposed amendment.

§133.11.Types of Licenses.

The board shall receive, evaluate and process all applications for licensure as a professional engineer received from individuals who assert through the application process that they meet the minimum requirements of §1001.302 of the Act. The board shall deny a license to any applicant found not to have met all requirements of the Act and board rules.

(1) Standard License. Unless requested by the applicant or license holder, all licenses issued by the board shall be considered standard licenses. Standard licenses are fully renewable annually until such time as the board takes specific action to prevent renewal or provision of the Texas Engineering Practice Act prevents renewal.

(2) Reciprocal License. The board does not recognize any jurisdiction for reciprocity at this time.

(3) Temporary License.

(A) A temporary license holder shall be subject to all other rules and legal requirements to which a holder of a standard license is subject. A temporary license may only be renewed twice for a total maximum duration of three years. [~~The executive director shall be authorized to convert a standard license to a temporary license.~~]

(B) After a temporary license has expired, a former temporary license holder may not apply for a subsequent temporary license.

(4) Provisional. The board does not issue provisional licenses at this time.

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 March 30, 2009.

TRD-200901242

Dale Beebe Farrow, P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: May 10, 2009

For further information, please call: (512) 440-7723

SUBCHAPTER C. PROFESSIONAL ENGINEER LICENSE APPLICATION REQUIREMENTS

22 TAC §133.23

The Texas Board of Professional Engineers (Board) proposes an amendment to §133.23, relating to Applications from Former Standard License Holders. The proposed amendment clarifies the requirements for re-licensure by individuals who formerly held a standard Texas professional engineer license.

The proposed rule change clarifies that the re-licensure rule was intended for applicants that held a standard license and not those that were licensed via the emergency temporary or temporary international licensure process. These changes limit the use of this licensure process to former holders of a standard license only.

Mr. Kinney also has determined that for the first five years the proposed amendment is in effect, the public benefit anticipated as a result of enforcing the proposed amendment is the clarification of the temporary licensure process and verifying that licensees are qualified to practice engineering in Texas.

No other statutes, articles or codes are affected by the proposed amendment.

§133.23.Applications from Former Standard [~~Texas~~] License Holders.

(a) A former standard license holder, whose original license has been expired for two or more years and who meets the current requirements for licensure, may apply for a new license. This section does not apply to a former holder of a temporary license.

(b) A former standard license holder applying for a license under the current law and rules must have the documentation requested in §133.21 of this chapter (relating to Application) recorded and on file with the board and may request in writing that any transcripts, reference statements, evaluations, supplementary experience records or other similar documentation previously submitted to the board be applied toward the new application. The applicant shall:

(1) submit a new application in a format prescribed by the board;

(2) pay the application fee established by the board;

(3) submit a completed Texas Engineering Professional Conduct and Ethics examination;

(4) submit a supplementary experience record that includes at least the last four years of engineering experience, which may include experience before the previous license expired; and

(5) submit also at least one reference statement conforming to §133.51 of this chapter (relating to Reference Providers), in which a professional engineer shall verify at least four years of the updated supplementary experience record.

(c) Once an application from a former standard license holder is received, the board will follow the procedures in §133.85 of this chapter (relating to Board Review of and Action on Applications) to review and approve or deny the application.

(d) Any license issued to a former standard [~~Texas~~ ] license holder shall be assigned a new serial number.

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 March 30, 2009.

TRD-200901243

Dale Beebe Farrow, P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: May 10, 2009

For further information, please call: (512) 440-7723

SUBCHAPTER D. EDUCATION

22 TAC §133.33

The Texas Board of Professional Engineers (Board) proposes an amendment to §133.33, relating to Proof of Educational Qualifications--Non-Accredited/Non-Approved Programs. The proposed amendment clarifies the requirements to accept a review of a foreign degree.

The proposed rule change removes a reference to an organization that no longer exists and clarifies that a foreign degree evaluation must indicate that a degree is equivalent to a degree from a U.S. educational institution.

Mr. Kinney also has determined that for the first five years the proposed amendment is in effect, the public benefit anticipated as a result of enforcing the proposed amendment is the clarification of the temporary licensure process and verifying that licensees are qualified to practice engineering in Texas.

No other statutes, articles or codes are affected by the proposed amendment.

§133.33.Proof of Educational Qualifications--Non-Accredited/Non-Approved Programs.

(a) An applicant for licensure who has graduated from a program other than one in which the undergraduate or graduate degree in the same discipline has been [~~has been~~] accredited or approved by any of the organizations identified in §133.31(a)(1)(A) or (a)(2)(A) of this chapter (relating to Educational Requirements for Applicants) shall furnish both an official transcript and an evaluation for each degree to be relied upon to meet the educational requirements of licensure as a professional engineer or certification as an engineer-in-training. Official transcripts shall include either grades or mark sheets and proof that the degree was conferred. In addition to providing a transcript reflecting the degree(s) earned by an applicant, the applicant shall also provide an official transcript from each school from which more than 15 semester hours were earned towards the degree.

(1) The applicant shall ensure that the required transcript(s) are forwarded from the officially recognized and approved institutional authority of records (e.g., registrar or other authority) of the institution from which the applicant graduated directly to a commercial degree evaluation service approved by the board. The applicant is responsible for ordering and paying for all such transcripts and evaluations. Additional academic information, including but not limited to grades and transfer credit, shall be submitted to the board at the request of the executive director.

(2) The degree evaluation must:

(A) validate the authenticity of the transcript, diploma, and any other supporting documentation;

(B) include a detailed, course-by-course evaluation of courses, including semester hours and grades;

(C) a comparison of the applicant's degree program to criteria of ABET applicable to the applicant's year of graduation; and a determination whether the curriculum of the degree program being evaluated meets the applicable criteria;

(D) establish that the applicant has received a conferred degree which is equivalent to a degree from a United States educational institution [~~as determined by the placement recommendations approved by the National Council for the Evaluation of Foreign Educational Credentials~~]; and

(E) be sent by the commercial evaluation service directly to the board, accompanied by the applicant's official transcript or a copy of the transcript verified by the commercial evaluation service.

(b) - (f) (No change.)

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

Filed with the Office of the Secretary of State on March 30, 2009.

TRD-200901244

Dale Beebe Farrow, P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: May 10, 2009

For further information, please call: (512) 440-7723

SUBCHAPTER E. EXPERIENCE

22 TAC §133.43

The Texas Board of Professional Engineers (Board) proposes an amendment to §133.43, relating to Experience Evaluation for applicants. The proposed amendment clarifies the elements the Board may consider when evaluating engineering experience for applicants for licensure.

The proposed rule change allows the Board to consider if an applicant intends to perform or offer engineering services in Texas when evaluating engineering experience. The Board is also proposing additional editorial changes to clarify and simplify the language used in the rule.

Mr. Kinney also has determined that for the first five years the proposed amendment is in effect, the public benefit anticipated as a result of enforcing the proposed amendment is the clarification of the temporary licensure process and verifying that licensees are qualified to practice engineering in Texas.

No other statutes, articles or codes are affected by the proposed amendment.

§133.43.Experience Evaluation.

(a) The board shall evaluate the nature and quality of the experience found in the supplementary experience record or the NCEES record experience information and shall determine if the work is satisfactory to the board for the purpose of issuing a license to the applicant. The board shall evaluate the supplementary experience record for evidence of the applicant's competency to be placed in responsible charge of engineering work of a similar character.

(1) Engineering work shall be satisfactory to the board and, therefore, considered by the board to be creditable engineering experience for the purpose of licensure if it is of such a nature that its adequate performance requires engineering education, training, or experience. The application of engineering education, training and experience must be demonstrated through the application of the mathematical, physical, and engineering sciences. Such work must be fully described in the supplementary experience record. Satisfactory engineering experience shall include an acceptable combination of design, analysis, implementation, and/or communication experience, including the following types of engineering activities:

(A) design, conceptual design, or conceptual design coordination for engineering works, products or systems;

(B) development or optimization of plans and specifications for engineering works, products, or systems;

(C) analysis, consultation, investigation, evaluation, planning or other related services for engineering works, products, or systems;

(D) planning the use or alteration of land, water, or other resources;

(E) engineering for program management and for development of operating and maintenance manuals;

(F) engineering for construction, or review of construction;

(G) performance of engineering surveys, studies, or mapping;

(H) engineering for materials testing and evaluation;

(I) expert engineering testimony;

(J) any other work of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal nature that requires engineering education, training or experience for its adequate performance; and

(K) the teaching of engineering subjects by a person who began teaching prior to September 1, 2001.

(2) In the review of engineering experience, the board may consider additional elements including [~~unique to the history of the applicant. Such elements may include~~]:

(A) whether the experience was sufficiently complex and diverse, and of an increasing standard of quality and responsibility;

(B) whether the quality of the engineering work shows minimum technical competency;

(D) whether the experience was gained in one dominant branch;

(E) whether non-traditional engineering experience such as sales or military service provides sufficient depth of practice; [~~and~~]

(F) whether short engagements have had an impact upon professional growth; and [.]

(G) whether the applicant intends to practice or offer engineering services in Texas.

(3) Engineering experience may be considered satisfactory for the purpose of licensing provided that:

(A) the experience is gained during an engagement longer than three months in duration;

(B) the experience, when taken as a whole, meets the minimum time;

(D) the experience includes at least two years of experience in the United States, not including time claimed for educational credit, or otherwise includes experience that would show a familiarity with US codes and engineering practice; and

(E) the time granted for the experience claimed does not exceed the calendar time available for the periods of employment claimed.

(b) - (f) (No change.)

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

Filed with the Office of the Secretary of State on March 30, 2009.

TRD-200901245

Dale Beebe Farrow, P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: May 10, 2009

For further information, please call: (512) 440-7723

PART 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

CHAPTER 501. RULES OF PROFESSIONAL CONDUCT

SUBCHAPTER D. RESPONSIBILITIES TO THE PUBLIC

22 TAC §501.82

The Texas State Board of Public Accountancy (Board) proposes an amendment to §501.82, concerning Advertising.

The amendment to §501.82 will function by requiring licensees to retain any electronic advertising transmissions for a period of 36 months.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the amendment will be none.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the amendment will be none.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the amendment will be none.

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be a clearer understanding of acceptable advertising.

The probable economic cost to persons required to comply with the amendment will be insignificant.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses because the amendment does not impose any duties or obligations upon small businesses.

Mr. Treacy has determined that an Economic Impact Statement and a Regulatory Flexibility Analysis are not required because the proposed amendment will not adversely affect small or micro businesses.

The Board requests comments on the substance and effect of the proposed rule from any interested person. Comments must be received at the Board no later than noon on May 10, 2009. Comments should be addressed to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854.

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

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

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

§501.82.Advertising.

(a) A person shall not use or participate in the use of:

(1) any written, oral, or electronic communication having reference to the person's professional services that contains a false, fraudulent, misleading or deceptive statement or claim; nor

(2) any written, oral or electronic communication that refers to the person's professional services that is accomplished or accompanied by coercion, duress, compulsion, intimidation, threats, overreaching, or vexatious or harassing conduct.

(b) Definitions:

(1) A "false, fraudulent, misleading, or deceptive statement or claim" includes, but is not limited to, a statement or claim which:

(A) contain a misrepresentation of fact;

(B) is likely to mislead or deceive because it fails to make full disclosure of relevant facts;

(D) implies educational or professional attainments or licensing recognition not supported in fact;

(E) represents that professional services can or will be completely performed for a stated fee when this is not the case, or makes representations with respect to fees for professional services that do not disclose all variables that may reasonably be expected to affect the fees that will in fact be charged;

(F) contains other representations or implications that in reasonable probability will cause a reasonably prudent person to misunderstand or be deceived;

(G) implies the ability to improperly influence any court, tribunal, regulatory agency or similar body or official due to some special relations;

(H) consists of self-laudatory statements that are not based on verifiable facts;

(I) makes untrue comparisons with other accountants; or

(J) contains testimonials or endorsements that are not based upon verifiable facts.

(2) Broadcast--Any transmission over the airwaves or over a cable, wireline, Internet, cellular, e-mail system or any other electronic means.

(3) Coercion--Compelling by force so that one is constrained to do what his free will would otherwise refuse.

(4) Compulsion--Driving or urging by force or by physical or mental constraint to perform or forbear from performing an act.

(5) Direct personal communication--Either a face-to-face meeting or a conversation by telephone.

(6) Duress--Any conduct which overpowers the will of another.

(7) Harassing--Any word, gesture, or action which tends to alarm and verbally abuse another person.

(8) Intimidation--Willfully to take, or attempt to take, by putting in fear of bodily harm.

(9) Overreaching--Tricking, outwitting, or cheating anyone into doing an act which he would not otherwise do.

(10) Threats--Any menace of such a nature and extent as to unsettle the mind of anyone on whom it operates, and to take away from his acts that free and voluntary action which alone constitutes consent.

(11) Vexatious--Irritating or annoying.

(c) It is a violation of these rules for a person to persist in contacting a prospective client when the prospective client has made known to the person, or the person should have known the prospective client's desire not to be contacted by the person.

(d) In the case of an electronic or direct mail communication, the person shall retain a copy of the actual communication [~~mailing~~ ] along with a list or other description of parties to whom the communication was [~~mailed or otherwise~~] distributed. Such copy shall be retained by the person for a period of at least 36 months from the date of its [~~the~~] last distribution [~~transmission or use~~].

(e) Subsection (d) of this section does not apply to anyone when:

(1) the communication is made to anyone who is at that time a client of the person;

(2) the communication is invited by anyone to whom it was made; or

(3) the communication is made to anyone seeking to secure the performance of professional services.

(f) In the case of broadcasting, the broadcast shall be recorded and the person shall retain a recording of the actual transmission for at least 36 months.

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 March 26, 2009.

TRD-200901196

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: May 10, 2009

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

22 TAC §501.86

The Texas State Board of Public Accountancy (Board) proposes new §501.86, concerning Disclosure of Subsequently Discovered Facts.

The new section will inform licensees of the need to inform the public when the licensee, after issuing an audit, subsequently becomes aware of information significantly affecting the audit opinion and the client refuses to disclose the information.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed new rule will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the new rule will be none.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the new rule will be none.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the new rule will be none.

Mr. Treacy has determined that for the first five-year period the new rule is in effect the public benefits expected as a result of adoption of the proposed new rule will be to protect the public from relying on inaccurate audits.

The probable economic cost to persons required to comply with the new rule will be none.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed new rule will not affect a local economy.

Mr. Treacy has determined that the proposed new rule will not have an adverse economic effect on small businesses because the rule does not impose any additional requirements, it merely clarifies existing requirements.

The Board requests comments on the substance and effect of the proposed new rule from any interested person. Comments must be received at the Board no later than noon on May 10, 2009, Comments should be addressed to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854.

The Board specifically invites comments from the public on the issues of whether or not the proposed new rule will have an adverse economic effect on small business; if the new rule is believed to have such an effect, then how may the Board legally and feasibly reduce that effect considering the purpose of the statute under which the new rule is to be adopted; and if the new rule is believed to have such an effect, how the cost of compliance for a small business compares with the cost of compliance for the largest business affected by the new rule under any of the following standards: (a) cost per employee; (b) cost for each hour of labor; or (c) cost for each $100 of sales. See Texas Government Code, §2006.002(c).

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

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

§501.86.Disclosure of Subsequently Discovered Facts.

If subsequent to the date of the report upon audited financial statements the licensee becomes aware that facts may have existed at that date which might have affected the report had he been aware of such facts, the licensee must investigate this new information in accordance with the standards established in AICPA Professional Standards AU Section 561 and follow its requirements, including disclosure, as necessary.

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 March 26, 2009.

TRD-200901195

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: May 10, 2009

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

SUBCHAPTER E. RESPONSIBILITIES TO THE BOARD/PROFESSION

22 TAC §501.90

The Texas State Board of Public Accountancy (Board) proposes an amendment to §501.90, concerning Discreditable Acts.

The amendment to §501.90 will function by specifically including perjury occurring in court proceedings as a discreditable act.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the amendment will be none.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the amendment will be none.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the amendment will be none.

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be to insure the integrity of the profession and the protection of the public.

The probable economic cost to persons required to comply with the amendment will be insignificant.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Mr. Treacy has determined that an Economic Impact Statement and a Regulatory Flexibility Analysis are not required because the proposed amendment will not adversely affect small or micro businesses.

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

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

§501.90.Discreditable Acts.

A person shall not commit any act that reflects adversely on that person's fitness to engage in the practice of public accountancy. A discreditable act includes but is not limited to:

(1) fraud or deceit in obtaining a certificate as a certified public accountant or in obtaining registration under the Act or in obtaining a license to practice public accounting;

(2) dishonesty, fraud or gross negligence in the practice of public accountancy;

(3) violation of any of the provisions of Subchapter J or §901.458 of the Act applicable to a person certified or registered by the board;

(4) final conviction of a felony or imposition of deferred adjudication or community supervision in connection with a criminal prosecution of a felony under the laws of any state or the United States;

(5) final conviction of any crime or imposition of deferred adjudication or community supervision in connection with a criminal prosecution, an element of which is dishonesty or fraud under the laws of any state or the United States, a criminal prosecution for a crime of moral turpitude, a criminal prosecution involving alcohol abuse or controlled substances, or a criminal prosecution for a crime involving physical harm or the threat of physical harm;

(6) cancellation, revocation, suspension or refusal to renew authority to practice as a certified public accountant or a public accountant by any other state for any cause other than failure to pay the appropriate registration fee in such other state;

(7) suspension or revocation of or any consent decree concerning the right to practice before any state or federal regulatory or licensing body for a cause which in the opinion of the board warrants its action;

(8) knowingly participating in the preparation of a false or misleading financial statement or tax return;

(9) fiscal dishonesty or breach of fiduciary responsibility of any type;

(10) failure to comply with a final order of any state or federal court;

(11) repeated failure to respond to a client's inquiry within a reasonable time without good cause;

(12) intentionally misrepresenting facts or making a misleading or deceitful statement to a client, the board, board staff or any person acting on behalf of the board;

(13) giving intentional false sworn testimony [ ~~swearing~~] or perjury in court or in connection with discovery in a court proceeding or in any communication to the board or any other federal or state regulatory or licensing body;

(14) threats of bodily harm or retribution to a client;

(15) public allegations of a lack of mental capacity of a client which cannot be supported in fact;

(16) voluntarily disclosing information communicated to the person by an employer, past or present, or through the person's employment in connection with accounting services rendered to the employer, except:

(A) by permission of the employer;

(B) pursuant to the Government Code, Chapter 554 (commonly referred to as the "Whistle Blowers Act");

(i) a court order signed by a judge; or

(ii) a summons

(I) under the provisions of the Internal Revenue Code of 1986 and its subsequent amendments,

(II) the Securities Act of 1933 (15 U.S.C. §77a et seq.) and its subsequent amendments, or

(III) the Securities Exchange Act of 1934 (15 U.S.C. §78a et seq.) and its subsequent amendments;

(D) in an investigation or proceeding by the board;

(E) in an ethical investigation conducted by a professional organization of certified public accountants; or

(F) in the course of a peer review under Section 901.159 of the Public Accountancy Act; or

(G) any information that is required to be disclosed by the professional standards for reporting on the examination of a financial statement.

(17) breaching the terms of an agreed consent order entered by the board or violating any Board Order.

(18) Interpretive Comment: The board has found in §519.7 of this title (relating to Misdemeanors that Subject a Person to Discipline by the Board) and §525.1 of this title (relating to Applications for the Uniform CPA Examination, Issuance of the CPA Certificate, a License, or Renewal of a License for Persons with Criminal Backgrounds) that any crime of moral turpitude directly relates to the practice of public accountancy. A crime of moral turpitude is defined in this chapter as a crime involving grave infringement of the moral sentiment of the community. The board has found in §519.7 of this title that any crime involving alcohol abuse or controlled substances directly relates to the practice of public accountancy.

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 March 26, 2009.

TRD-200901197

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: May 10, 2009

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

CHAPTER 512. CERTIFICATION BY RECIPROCITY

22 TAC §512.1

The Texas State Board of Public Accountancy (Board) proposes an amendment to §512.1, concerning Certification as a Certified Public Accountant by Reciprocity.

The amendment to §512.1 will function by requiring an applicant for reciprocity to identify all jurisdictions he has been certified and/or licensed in and all disciplinary actions taken or currently pending against him.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the amendment will be none.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the amendment will be none.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the amendment will be none.

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be to disclose to the public disciplinary actions taken by other jurisdictions against CPAs relocating to Texas and to protect the public from individuals from other jurisdictions that should not be licensed in Texas.

The probable economic cost to persons required to comply with the amendment will be insignificant.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Mr. Treacy has determined that an Economic Impact Statement and a Regulatory Flexibility Analysis are not required because the proposed amendment will not adversely affect small or micro businesses.

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

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

§512.1.Certification as a Certified Public Accountant by Reciprocity.

(a) The certificate of a "certified public accountant" shall be granted by reciprocity to any individual who is qualified under §901.259 or §901.260 of the Act and has provided in the application for reciprocity the names of the jurisdictions in which the individual is or has been certified and/or licensed and provide all disciplinary actions taken or pending in those jurisdictions. [The individual's certificate or credentials in the original jurisdiction must be in good standing when the application is submitted and remain in good standing until the individual's application for certification by reciprocity has been approved and a certificate has been issued to the individual by this board.]

(b) An individual from a domestic jurisdiction demonstrates that he meets the requirements for certification by reciprocity by:

(1) satisfying one of the following conditions:

(A) the individual holds a certificate or license to practice public accountancy from a domestic jurisdiction that has been determined by the board pursuant to §512.2 of this title (relating to National Association of State Boards of Accountancy Verified Substantially Equivalent Jurisdictions) as having substantially equivalent requirements for certification; or

(B) the individual holds a certificate or license to practice public accountancy from a domestic jurisdiction that has not been determined by NASBA and the board to have substantially equivalent certification requirements but has had his education, examination and experience verified as substantially equivalent to those required by the Uniform Accountancy Act by NASBA; or

(C) the individual meets all requirements for issuance of a certificate set forth in the Act other than the provision requiring proof of grades to be eligible to take the uniform CPA examination; or

(D) the individual met the requirements in effect for issuance of a certificate in this state on the date the individual was issued a certificate or license by another domestic jurisdiction; or

(E) after passing the uniform CPA examination, the individual has completed at least four years of experience practicing public accountancy within the ten year period immediately preceding the date of application in this state; and

(2) the individual meets the CPE requirements applicable to certificate holders contained in Chapter 523 of this title (relating to Continuing Professional Education).

(c) An individual from a foreign jurisdiction demonstrates that he meets the requirements for certification by reciprocity by:

(1) holding a credential that has not expired or been revoked, suspended, limited or probated, that entitles the holder to issue reports on financial statements issued by a licensing authority or professional accountancy body of another country that:

(A) regulates the practice of public accountancy and whose requirements to obtain the credential have been determined by the board to be substantially equivalent to the requirements of education, examination and experience contained in the Act; and

(B) grants credentials by reciprocity to individuals certified to practice public accountancy by this state;

(2) receiving that credential based on education and examination requirements that were comparable to or exceeded those required by the Act at the time the credential was granted;

(3) completing an experience requirement in the foreign jurisdiction that issued the credential that is comparable to or exceeds the experience requirement of the Act or has at least four years of professional accounting experience in this state;

(4) passing an international qualifying examination (IQEX) covering national standards that has been approved by the board; and

(5) passing an examination covering the laws, rules and code of professional conduct in effect in this state that has been approved by the board.

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

Filed with the Office of the Secretary of State on March 26, 2009.

TRD-200901198

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: May 10, 2009

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

PART 32. STATE BOARD OF EXAMINERS FOR SPEECH-LANGUAGE PATHOLOGY AND AUDIOLOGY

CHAPTER 741. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS

The State Board of Examiners for Speech-Language Pathology and Audiology (board) proposes amendments to §§741.41, 741.64, 741.81, 741.103, 741.112, 741.161, and 741.162, new §§741.122, 741.163, and 741.211 - 741.215, and the repeal of §741.163, concerning the regulation and licensure of speech-language pathologists and audiologists.

BACKGROUND AND PURPOSE

The proposed rules are intended to update the rules so that they reflect the board's current operational procedures in processing and approving licensure applications and to provide clarification of the rules, so that the intent is not ambiguous for license holders and the public. The proposed amendments, repeal, and new rules are necessary to update and clarify existing licensure requirements for an audiologist by reflecting current national standards; add the definition and use for telehealth in the speech-language pathology and audiology profession; and add the requirements to administer a jurisprudence examination.

SECTION-BY-SECTION SUMMARY

The amendments to §741.41(a) are proposed to clarify the professional responsibilities of the license holder to inform the board office with updated personal data.

The amendments to §741.64(g) are proposed to clarify when and who should complete the initial contact with the client.

The amendments to §741.81 are proposed to clarify the educational documentation required for an audiology license.

The amendments to §741.103 are proposed to remove an outdated chart containing maximum permissible ambient noise levels as previously established by the American National Standards Institute (ANSI).

The amendments to §741.112 define when the effective date of the jurisprudence examination will begin.

New §741.122 is proposed to add the requirements to administer a jurisprudence examination.

The amendments to §741.161 are proposed to add the requirements to administer a jurisprudence examination at the time of renewal.

The amendments to §741.162 are proposed to clarify that jurisprudence examination can count as one hour of continuing education requirement for professional ethics.

The repeal of and new §741.163 are proposed to update the inactive status to a two-year renewal cycle.

New §§741.211 - 741.215 (Subchapter O) are proposed to clarify the definition of telehealth, provide service delivery models, provide guidelines for the use, provide limitation for services, and the requirements of personnel providing the services.

FISCAL NOTE

Joyce Parsons, Executive Director, has determined that for each year of the first five years 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 ECONOMIC STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS.

Ms. Parsons has also determined that there will be no adverse economic impact to 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 sections. The economic costs to persons who are required to comply with new §741.122 is the new jurisprudence examination fee of $35 that the licensee will pay to the online examination company. There is no anticipated negative impact on local employment. Therefore, an economic impact statement and regulatory flexibility analysis for micro-businesses and small businesses is not required.

PUBLIC BENEFIT

Ms. Parsons has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the sections will be to ensure the effective regulation of speech-language pathologists and audiologists in Texas, which will protect and promote public health, safety, and welfare.

REGULATORY ANALYSIS

The board 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 board has determined that the proposed amendments, repeal, and new 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 Joyce Parsons, Executive Director, State Board of Examiners for Speech-Language Pathology and Audiology, MC-1982, P.O. Box 149347, Austin, Texas 78714-9347. Comments may also be sent through e-mail to speech@dshs.state.tx.us. Please write "Comments on Proposed Rules" in the subject line. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

PUBLIC HEARING

A public hearing to receive comments on the proposal of Subchapter O. Telehealth (telepractice) is scheduled for Friday, May 8, 2009, from 9:30 a.m. until 12:00 p.m., at the Department of State Health Services, Moreton Building, Room M-653, 1100 West 49th Street, Austin, Texas.

SUBCHAPTER D. CODE OF ETHICS; DUTIES AND RESPONSIBILITIES OF LICENSE HOLDERS

22 TAC §741.41

STATUTORY AUTHORITY

The amendment is proposed under Texas Occupations Code, §401.202, which provides the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Texas Occupations Code, Chapter 401.

The amendment affects Texas Occupations Code, Chapter 401.

§741.41.Professional Responsibilities of License Holders.

(a) A licensee shall:

(1) - (7) (No change.)

(8) terminate a professional relationship when it is reasonably clear that the client is not benefiting from the services being provided; [~~and~~]

(9) provide accurate information to clients and the public about the nature and management of communicative disorders and about the profession and the services rendered; [.]

(10) notify the board in writing of changes of name, highest academic degree granted, address, and telephone number. The board is not responsible for lost, misdirected, or undelivered mail; and

(11) notify the board of changes in name or preferred mailing address within 30 days of such change(s) which must include the name, mailing address, and zip code, and be mailed, telephoned, faxed, or sent by electronic mail to the executive director.

(b) - (l) (No change.)

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

Filed with the Office of the Secretary of State on March 30, 2009.

TRD-200901247

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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

SUBCHAPTER E. REQUIREMENTS FOR LICENSURE OF SPEECH-LANGUAGE PATHOLOGISTS

22 TAC §741.64

STATUTORY AUTHORITY

The amendment affects Texas Occupations Code, Chapter 401.

§741.64.Requirements for an Assistant in Speech-Language Pathology License.

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

(g) A licensed speech-language pathologist shall assign duties and provide appropriate supervision to the assistant.

(1) Initial contacts directly with the client shall be conducted by the supervising speech-language pathologist in order to determine whether the assistant has the competence to perform specific duties before delegating tasks.

(2) This initial contact also applies when there is a change of the supervising speech-language pathologist.

~~[(1) Initial diagnostic contacts shall be conducted by the supervising speech-language pathologist.]~~

~~[(2) Following the initial diagnostic contact, the supervising speech-language pathologist shall determine whether the assistant has the competence to perform specific duties before delegating tasks.]~~

(3) - (7) (No change.)

(h) - (m) (No change.)

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

Filed with the Office of the Secretary of State on March 30, 2009.

TRD-200901248

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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

SUBCHAPTER F. REQUIREMENTS FOR LICENSURE OF AUDIOLOGISTS

22 TAC §741.81

STATUTORY AUTHORITY

The amendment affects Texas Occupations Code, Chapter 401.

§741.81.Requirements for an Audiology License.

(a) (No change.)

(b) The doctoral or master degree awarded prior to 2007, [ ~~graduate degree~~] shall be completed at a college or university that has a program accredited by the American Speech-Language Hearing Association Council on Academic Accreditation and holds accreditation or candidacy status from a recognized regional accrediting agency.

[~~(1) Original or certified copies of the transcripts showing the conferred degree shall verify the applicant completed the following:~~]

[~~(A) at lease 36 semester credit hours shall be in professional course work acceptable toward a graduate degree;~~]

[(B) at least 24 semester credit hours acceptable toward a graduate degree shall be earned in the area of audiology, including hearing disorders, hearing evaluations, habilitative/rehabilitative procedures, and preventive methods, including the study of auditory disorders and habilitative/rehabilitative procedures across the life span; and]

[~~(C) six semester credit hours shall be earned in the area of normal development of speech and language speech disorders.~~]

[(2) A maximum of six academic semester credit hours associated with clinical experience and a maximum of six academic semester credit hours associated with a thesis or dissertation may be counted toward the 36 hours but not in lieu of the requirements of paragraph (1)(B) and (C) of this subsection.]

[~~(3) A quarter hour of academic credit shall be considered as two-thirds of a semester credit hour.~~]

[(4) An applicant who possesses a master's degree with a major in speech-language pathology and is pursuing a license in audiology may apply if the board has an original transcript showing the conferred degree showing completion of a master's degree with a major in speech-language pathology on file and a letter from the program director or designee of the college or university stating that the individual completed enough hours to establish a graduate level major in audiology and would meet the academic and clinical experience requirements for a license as an audiologist.]

(c) [~~(5)~~] An applicant who graduated from a college or university not accredited by the American Speech-Language Hearing Association Council on Academic Accreditation shall have the American Speech-Language-Hearing Association Clinical Certification Board evaluate the course work and clinical experience earned to determine if acceptable. The applicant shall bear all expenses incurred during the procedure.

[(c) An applicant shall complete at least 25 clock hours of supervised observation before completing the minimum of the following hours of supervised clinical experience, which may be referred to as clinical practicum, with individuals who present a variety of communication disorders within an educational institution or in one of its cooperating programs:]

[~~(1) 275 clock hours if the master's or higher degree was earned prior to November 10, 1993; or~~]

[~~(2) 350 clock hours if the master's or higher degree was earned between November 10, 1993 and December 31, 2006; or~~]

[~~(3) 1400 clock hours if the master's or higher degree was earned on or after January 1, 2007.~~]

[(d) An applicant shall obtain a minimum of 36 weeks of full-time, or its part-time equivalent, of supervised professional experience in which clinical work has been accomplished in audiology as set out in §741.82 of this title (relating to Requirements for an Intern in Audiology License).]

[~~(1) An individual shall be licensed under §741.82 of this title prior to the beginning of the supervised professional experience.~~]

[~~(2) The supervisor of an individual who completed an internship in another state and met the requirements set out in §741.82 of this title shall:~~]

[~~(A) be licensed in that other state, rather than Texas; or~~]

[~~(B) hold the American Speech-Language-Hearing Association certificate of clinical competence in audiology if the other state did not require licensing.~~]

(d) [~~(e)~~] An applicant shall pass the examination as referenced by §741.121 of this title (relating to Examination Administration) within the past 10 years from the date of the application. [:]

[~~(1) the past 10 years; and~~]

[~~(2) two years of the completion date of the internship referenced in subsection (d) of this section.~~]

(e) [~~(f)~~] In the event the applicant passed the examination referenced in subsection (d) [~~(e)~~] of this section more than two years after the completion date of the internship, the applicant shall repeat the 36 weeks supervised internship before applying for the audiology license. The applicant shall obtain the intern license as required by §741.82 of this title (relating to Requirements for an Intern in Audiology License) prior to repeating the internship. The applicant may appeal to the board's designee for waiver of the requirement to repeat the internship.

(f) [~~(g)~~] An applicant who previously held the American Speech-Language-Hearing Association Certificate of Clinical Competence may have the certificate reinstated and apply for licensure under §741.83 of this title (relating to Waiver of Clinical and Examination Requirements for Audiologists).

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 March 30, 2009.

TRD-200901249

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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

SUBCHAPTER H. FITTING AND DISPENSING OF HEARING INSTRUMENTS

22 TAC §741.103

STATUTORY AUTHORITY

The amendment affects Texas Occupations Code, Chapter 401.

§741.103.Requirements of Audiologists and Interns in Audiology Conducting Audiometric Testing for the Purpose of Fitting and Dispensing Hearing Instruments.

In accordance with the Act, a licensed audiologist or licensed intern in audiology who fits and dispenses hearing instruments, shall comply with this section when testing hearing for the purpose of determining the need for amplification.

(1) Licensees must adhere to the most current American National Standards Institute (ANSI[~~, S3.1, 1999~~]) octave band criteria for permissible ambient noise levels during audiometric testing. [~~as shown on the chart. The chart is excerpted from the standard for illustrative purposes and is based on a 125 to 8,000 Hz test frequency range.~~]

[~~Figure: 22 TAC §741.103(1)~~]

(2) - (4) (No change.)

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

Filed with the Office of the Secretary of State on March 30, 2009.

TRD-200901250

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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

SUBCHAPTER I. APPLICATION PROCEDURES

22 TAC §741.112

STATUTORY AUTHORITY

The amendment affects Texas Occupations Code, Chapter 401.

§741.112.Required Application Materials.

(a) - (g) (No change.)

(h) After December 31, 2009, all applicants for licensure must submit proof of successful completion of the jurisprudence examination at the time of application. The jurisprudence examination must be completed no more than six months prior to the date of licensure application.

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 March 30, 2009.

TRD-200901251

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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

SUBCHAPTER J. LICENSURE EXAMINATIONS

22 TAC §741.122

STATUTORY AUTHORITY

The new rule is proposed under Texas Occupations Code, §401.202, which provides the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Texas Occupations Code, Chapter 401.

The new rule affects Texas Occupations Code, Chapter 401.

§741.122.Jurisprudence Examination.

(a) The department shall develop and administer a jurisprudence examination to determine an applicant's knowledge of the Act, this section, and any other applicable laws of this state affecting the practice of speech-language pathology or audiology.

(b) The examination shall be administered in a web-based format through an examination contract, which specifies that applicants for examination must be able to:

(1) pay the examination fee online by credit card; and

(2) receive their examination results electronically immediately upon completion of the examination.

(d) After December 31, 2009, all applicants for licensure must submit proof of successful completion of the jurisprudence examination at the time of application. The jurisprudence examination must be completed no more than six months prior to the date of licensure application.

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 March 30, 2009.

TRD-200901252

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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

SUBCHAPTER L. LICENSE RENEWAL AND CONTINUING EDUCATION

22 TAC §741.161, §741.162

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code, §401.202, which provides the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Texas Occupations Code, Chapter 401.

The amendments affect Texas Occupations Code, Chapter 401.

§741.161.Renewal Procedures.

(a) - (t) (No change.)

(u) For all licenses renewing after December 31, 2009, the jurisprudence examination must be completed in order to renew the license. Licensees shall be required to complete the jurisprudence examination for only one renewal period.

(v) Proof of successfully completing the jurisprudence examination must be submitted to the board at the time of renewal.

§741.162.Requirements for Continuing Professional Education.

(a) - (m) (No change.)

(n) Completion of the jurisprudence examination shall count as one hour of the continuing education requirement for professional ethics, as referenced in subsection (c) of this section per renewal period.

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 March 30, 2009.

TRD-200901253

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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

22 TAC §741.163

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

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, §401.202, which provides the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Texas Occupations Code, Chapter 401.

The repeal affects Texas Occupations Code, Chapter 401.

§741.163.Inactive Status.

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 March 30, 2009.

TRD-200901254

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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

22 TAC §741.163

STATUTORY AUTHORITY

The new rule affects Texas Occupations Code, Chapter 401.

§741.163.Inactive Status.

(a) A licensee may place his or her license on inactive status by submitting a written request prior to the expiration of the license along with the required inactive fee. Inactive status periods shall be granted only to persons whose licenses are current.

(b) An inactive status period shall begin on the first day of the month following payment of an inactive status fee.

(c) A person may not practice as a speech-language pathologist, audiologist, intern, or assistant during the inactive status period.

(d) A licensed audiologist or intern in audiology may not fit and dispense hearing instruments if the audiology or the intern in audiology license has been placed on inactive status.

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 March 30, 2009.

TRD-200901255

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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

SUBCHAPTER O. TELEHEALTH

22 TAC §§741.211 - 741.215

STATUTORY AUTHORITY

The new rules are proposed under Texas Occupations Code, §401.202, which provides the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Texas Occupations Code, Chapter 401.

The new rules affect Texas Occupations Code, Chapter 401.

§741.211.Definitions.

The following words and terms when used in this chapter shall have the indicated meanings unless the context clearly indicates otherwise.

(1) Board--The Texas State Board of Examiners for Speech-Language Pathology and Audiology.

(2) Client--A consumer of telehealth services.

(3) Consultant--Any professional who collaborates with a provider of telehealth services to provide services to clients.

(4) Provider--A currently licensed speech-language pathologist or a currently licensed audiologist who provides telehealth services.

(5) Service delivery model--The method of providing telehealth services.

(6) Site--The client location for providing telehealth services.

(7) Stored clinical data--Video clips, sound/audio files, photo images, electronic records, and written records that may be available for transmission via telehealth communications.

(8) Telehealth--The use of telecommunications and information technologies for the exchange of information from one site to another for the provision of speech-language pathology or audiology services to an individual from a provider through hardwire or internet connection.

(9) Telepractice--The practice of telehealth.

§741.212.Service Delivery Models.

(a) Telehealth may be delivered in a variety of ways, as set out in this section.

(b) Store-and-forward model/electronic transmission is an asynchronous electronic transmission of stored clinical data from one location to another usually by the internet via email and fax.

(c) Clinician interactive model is a synchronous, real time interaction between the provider and client or consultant that may occur via audio and video transmission over telecommunication links such as telephone, internet, fax, or other methods for distance communication, including:

(1) videoconferencing;

(2) remote control software applications;

(3) computer applications;

(4) fax transmittal and receipt;

(5) email correspondence including attachments; or

(6) video and audio transmission through regular mail service delivery and express delivery services.

(d) Self-monitoring/testing model refers to when the client or consultant receiving the services provides data to the provider without a facilitator present at the site of the client or consultant.

(e) Live versus stored data refers to the actual data transmitted during the telepractice. Both live, real-time and stored clinical data may be included during the telepractice.

§741.213.Guidelines for the Use of Telehealth.

(a) A provider shall comply with the board's Code of Ethics and Scope of Practice requirements when providing telehealth services.

(b) The scope, nature, and quality of services provided via telepractice are the same as that provided during in-person sessions by the provider.

(c) The quality of electronic transmissions shall be appropriate for the provision of telehealth services as if those services were provided in person.

(d) A provider shall only utilize technology with which they are competent to use as part of their telepractice services.

(e) Equipment used for telehealth services shall be maintained in appropriate operational status to provide appropriate quality of services.

(f) Equipment used at the site at which the client or consultant is present shall be in appropriate working condition and deemed appropriate by the provider.

(g) The initial contact between the licensee and client shall be at the same physical location to determine the advisability of telehealth services.

(h) A provider shall be aware of the client or consultant level of comfort with the technology being used as part of the telehealth services and adjust their practice to maximize the client or consultant level of comfort.

(i) When a provider collaborates with a consultant from another state in which the telepractice services are eventually delivered, the consultant in the state in which the client lives shall be the primary care provider for the client.

(j) As pertaining to liability and malpractice issues, a provider shall be held to the same standards of practice as if the telepractice services were provided in person.

(k) A provider shall be sensitive to cultural and linguistic variables that affect the identification, assessment, treatment, and management in the clients.

(l) Upon request, the provider shall submit to the board data which evaluates effectiveness of services provided via telehealth including but not limited to outcomes measures.

(m) A treating provider or health professional who provides or facilitates the use of telehealth services shall ensure that the confidentiality of the client's information is maintained as required by applicable laws.

(n) A provider shall comply with any federal or state law relating to the security and confidentiality of the information maintained or received.

§741.214.Limitations of Telehealth Services.

(a) A provider of telehealth services shall inform the client and consultants as to the limitations of providing these services, including the following:

(1) the inability to have direct, physical contact with the client is a primary difference between telehealth and direct in-person service delivery;

(2) the quality of transmitted data may affect the quality of services provided by the provider; and

(3) that changes in the environment and test conditions could be impossible to make during delivery of telehealth services.

(b) Telehealth services may not be provided by correspondence only.

§741.215.Requirements of Personnel Providing Telehealth Services.

(a) A provider of telehealth services who practices in the state shall be licensed by the board.

(b) A provider of telehealth services shall be competent in both the type of services provided and the methodology and equipment used to provide the service.

(c) A provider of telehealth services who resides out of state and who provides services to Texas residents shall be licensed by the board.

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

Filed with the Office of the Secretary of State on March 30, 2009.

TRD-200901256

Kerry Ormson, Ed.D., Au.D.

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Earliest possible date of adoption: May 10, 2009

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