Proposed Sections Before an agency may permanently adopt a new or amended section, or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before any action may be taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive sections, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 1. ADMINISTRATION Part XIII. Texas Incentive and Productivity Commission Chapter 273. State Employee Incentive Program 1 TAC sec.sec.273.1, 273.7, 273.9, 273.27 The Texas Incentive and Productivity Commission proposes amendments to sec.sec.273.1, 273.7, 273.9, and 273.27 concerning taxes on cash awards and employee eligibility in the State Employee Incentive Program. Section 273.1 amends definition to reflect change in the Government Code and adds a definition to differentiate bonus payment and the amount the employee will receive after taxes. Section 273.7 further defines the agency role in processing the award payment. Section 273.9 amends the provisions concerning the award eligibility period for a suggestion. Section 273.27 amends provisions concerning the tax treatment of an award payment to have taxes withheld from the cash award. M. Elaine Powell, Executive Director, has determined that there will neither be fiscal implications nor economic implications as a result of enforcing or administering the section. Ms. Powell, also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be that the sections will facilitate participation in our cost saving program. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the sections. Comments on the proposal may be submitted to M. Elaine Powell, Executive Director, Texas Incentive and Productivity Commission, P.O. Box 12482, Austin, Texas 78711. Comments are specifically requested on the following questions relating to the Award Eligibility Period, sec.273.9: Should an employee be able to receive an extension to the award eligibility period? If so, how long should the extension period be and how many extensions should be available? Should the request be required to be made prior to expiration of award eligibility? Should it be necessary that new information be provided at the time the extension is requested? What should the Coordinator's role be in notifying the employee? Does filing of an extension imply that the suggestion is treated as a new suggestion and therefore subject to evaluation and commission processing? If it should not be considered a new suggestion, what should the commission's role be in re- circulating the suggestion if it applies to multiple agencies? Should the commission close a suggestion file at the conclusion of the award eligibility period and any valid extensions? If so, then should subsequent suggestions identical to closed suggestions be treated as new suggestions? If not, should the open files be limited to suggestions approved by the commission? Should a suggestion always be attributable to the first employee(s) who submitted it? If so, how could a suggestion file ever be closed? If an agency implements a suggestion after the award eligibility period, should that agency still be required to transfer the savings/revenue? If the agency should be required to transfer the savings/revenue after the expiration of the award eligibility period, then how is the transfer accomplished with the statutory framework allocating savings/revenue to the commission (for administration and payment of awards), the agency, and the originating fund? The amendments are proposed under the Government Code, Chapter 2108, sec.2108.004, which provides the Texas Incentive and Productivity Commission with the authority to promulgate rules for the State Employee Incentive Program. There is no cross reference to statute. sec.273.1. Definitions for the State Employee Incentive Program. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. Act-Government Code Chapter 2108, Employee Agency and Productivity, and the General Appropriations Act.
    [Vernon's Annotated Civil Statutes, Article 6252-29a, Incentive and Productivity Act and the General Appropriations Act.] Net cash award-a monetary amount resulting after necessary taxes are deducted from the award. sec.273.7. Agency's Role. (a)-(e) (No change.) (f) Calculation and certification of net savings. Upon implementation of an approved suggestion, an agency shall track savings for one year in preparation for making the certification and funds transfers described in the Act, sec.2108.037
      [sec.2.002(f)]. The Commission may certify a savings amount prior to the completion of a full implementation year if the suggestion involves a one-time savings or if the Commission finds the agency's projected savings to be based on a reasonable and reliable method. (g) Allocation of net annual savings. Net annual savings realized from employee suggestions adopted by a state agency must be allocated by the state agency as provided in the Act, sec.2108.037
        [sec.2.002(f)] the General Appropriations Act, and Comptroller's Accounting Policy Statement #34. Necessary amounts for withholding of employee income and Social Security taxes will be deducted from the cash award and the agency will pay the employer share of the Social Security taxes. sec.273.9. Eligibility. (a) Employee Eligibility. Each state employee is eligible to participate in the program except an employee: (1) who has authority to implement the suggestion being made; (2) who is on an unpaid leave of absence; (3) whose job description includes responsibility for cost analysis, efficiency analysis, savings implementation, or other related programs within the employee's agency; (4) who is involved in, or has access to agency research and development programs, if that information is used as the basis of the suggestion; (5) whose job description includes developing the type of change in the agency administration that is proposed in the suggestion; and/or (6) who is an elected or appointed official. (b) Suggestion Eligibility. A suggestion is ineligible for consideration under this Program if it: (1) does not describe a method to achieve the desired savings or benefit; (2) proposes ideas under consideration for implementation (in and outside of the Program) on the date that the suggestion is submitted to the agency; (3) relates only to personnel matters or grievances, including employee classification or compensation; (4) proposes a correction for a condition that resulted because applicable established procedures were not properly followed; (5) proposes implementation of a policy or procedure that has already been adopted by the employee's agency, except as described in subsection (c) of this section; or (6) violates the intent of the Program. (c) Agency implementation prior to submission of suggestion to the Program. If an agency adopts a policy or procedure as a result of an employee suggestion before the suggestion is submitted to the agency coordinator, the Commission may grant a bonus or issue a certificate of appreciation to the employee or employees who made the suggestion if the agency coordinator confirms that: (1) the employee or employees who receive the award are eligible as described in subsection (a) of this section; (2) the suggestion is otherwise eligible under subsection (b) of this section; (3) the employee or employees proposed a reasonable method of implementation and described the type of benefits or savings foreseen to the agency before agency implementation; and (4) the agency adopted the policy or procedure as a result of the suggestion. (d) Award Eligibility Period. (1) Suggestions Approved by the Commission. In addition to the provisions in sec.273.27 of this title (relating to Awards), for a suggestion to qualify for a cash award, an agency must implement the suggestion and transfer resulting savings/revenue within two years of the date of Commission approval of the suggestion. (2) Suggestions Not Approved by the Commission. If a suggestion that has not yet been approved by the Commission is not implemented by a target agency within two years of the date on which the Commission received the suggestion, it is not eligible for an award. (3) Suggestions Requiring Legislative Action. In addition to the provisions in sec.273.27 of this title for a suggestion requiring legislative action to qualify for a cash award, an agency must implement the suggestion and transfer resulting savings/revenue by the end of the third fiscal year following the fiscal year during which the Commission receives the suggestion. (4) Duplicate Suggestions. A suggestion is not eligible for an award if it duplicates a suggestion that was previously received by the Commission and that is eligible for an award. (5) Extensions. An employee may receive an extension of the award eligibility period by making such a request prior to the expiration of the award eligibility period in a form issued by the Commission. (6) Closing of suggestion files. The file on a suggestion will be closed at the expiration of the applicable award eligibility period, including any valid extensions.
          [In addition to the other criteria for payment of cash awards, suggestions must be implemented by at least one state agency within the following time periods for the employee to qualify for payment of a cash award: [(A) Eligible Suggestions: within two years after the date the Commission approves the suggestion. [(B) Ineligible Suggestions: within two years after the date the Commission receives the suggestion. In these cases, the coordinator shall notify the Commission, and the Commission may consider that suggestion for approval. [(C) Suggestions Requiring Legislative Action: by the end of the third fiscal year following the fiscal year during which the Commission receives the suggestion. [(2) An employee may resubmit a suggestion after the expiration of the award eligibility period. Such resubmitted suggestions shall be considered as new suggestions and shall be subject to the eligibility review and evaluation processes described in sec.273.7 of this title (relating to Agency's Role) and this section.] sec.273.27. Awards. (a) Amount. An employee whose suggestion results in a net annual savings or increase in revenues of $100 or more is eligible for a bonus of 10% of the net savings or revenue increase, up to a maximum of $5,000. If the suggestion is submitted by more than one employee, the bonus shall be divided among the employees. (b) Suggestion eligibility. Only an approved and implemented employee suggestion is eligible for an award. (c) Award prior to full one-year implementation. The Commission may grant an award before the completion of the first year in which the suggestion is implemented, based on actual or projected annual savings or increased revenues that are certified by the affected state agency and the Commission. (d) Taxes on cash awards. Cash awards are considered wages for Social Security and income tax purposes. (e) Processing Cash Awards. Upon Commission receipt of notification that savings have been transferred by the affected agency according to the allocations provided in the Government Code, sec.2108.037, General Appropriations Act, and Comptroller's Accounting Policy #34, the Commission will initiate processing payment of the net cash award. The Commission will process a supplemental pay transaction or cause a supplemental pay transaction to be made for the employees(s) submitting the suggestion. Necessary amounts for withholding of employee income and Social Security taxes will be deducted from the cash award. The originating agency will pay the employer share of Social Security taxes.
            [Income taxes payable on cash awards are the responsibility of the employee receiving the cash award. The Commission will prepare the appropriate Internal Revenue Service forms to document the amount of the award.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 8, 1993. TRD-9331689 M. Elaine Powell Executive Director Texas Incentive and Productivity Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 475-2393 TITLE 13. CULTURAL RESOURCES Part IV. Texas Antiquities Committee Chapter 41. Practice and Procedure 13 TAC sec.41.24, sec.41.27 The Texas Antiquities Committee (committee) proposes amendments to sec.41. 24, concerning Reports Relating to Archeological Permits, and sec.41.27, concerning Disposition of Archeological Artifacts and Data. The amendments are necessary to increase the number of antiquities reports to be dispersed to regional libraries and to ensure that publicly owned artifacts and related materials are permanently preserved in research collections at a curatorial facility approved by the committee. The amendment to sec.41.24 of this title (related to Reports Relating to Archeological Permits) is needed to increase the number of reports required by antiquities permit conditions from 12 to 20; to increase the number of regional libraries that receive the reports from 8 to 16; and to require the submission of a Department of Antiquities Protection Abstract Form as a permit condition. It is necessary to amend the rule to provide for additional dispersal to regional libraries and to provide for better communication with the public and researchers regarding the nature of archeological investigations on public lands in Texas. The amendment to sec.41.27 of this title (related to Disposition of Archeological Artifacts and Data), is proposed to ensure that publicly owned specimens, artifacts, materials, and samples plus original field notes, maps, drawings, photographs, and standard state site forms are permanently preserved in research collections at a curatorial facility approved by the committee. Although an existing condition of antiquities permit requirements, the proposed amendment provides for a stronger enforcement mechanism. Dr. James E. Bruseth, deputy state historic preservation officer, has determined that for the first five-year period the rule is in effect there will be minor fiscal implications for state or local government as a result of enforcing or administering the rule. The amendment will result in a slight increase in report reproduction costs. Dr. Bruseth also has determined that for each year of the first five-year period the rules are in effect, the public benefit anticipated as a result of administering the rule will be more widespread dispersal to regional libraries and increased accessibility to promote their use by citizens and researchers. There will be a slight increase in report reproduction costs (from 12 to 20) for small businesses and persons who are required to comply with the rules as proposed. Comments on the proposal may be submitted to Dr. James E. Bruseth, Deputy State Historic Preservation Officer, Texas Historical Commission, Department of Antiquities Protection, P.O. Box 12276, Austin, Texas 78711. The amendments are proposed under the Natural Resources Code, Title 9, Chapter 191 (revised by Senate Bill 231, 68th Legislature, 1983, and by House Bill 2056, 70th Legislature, 1987), sec.191.02, which provides the Texas Antiquities Committee with authority to promulgate rules and require contract or permit conditions to reasonably effect the purposes of Chapter 191. sec.41.24. Reports Relating to Archeological Permits. (a) A report should meet the Council of Texas Archeologists (CTA) Guidelines for Cultural Resources Management Full Reports, available from the Texas Antiquities Committee, P.O. Box 12276, Austin, Texas 78711 or from the Council of Texas Archeologists
              [The following are report standards for any permit investigation in which artifacts are recovered or archeological sites or deposits are discovered. Failure to comply with these standards will result in the rejection (pending rectification) of the report by the Texas Antiquities Committee. The fulfillment of these requirements should be considered the minimal threshold of acceptability, and a report should not be limited to addressing these responsibilities only]. (1) The report must also contain specific recommendations of which sites are eligible for designation to State Archeological Landmark status; which sites appear to be eligible for inclusion in the National Register of Historic Places; and which sites will be adversely affected by a proposed project
                [Unless otherwise specified the format for reports will be 8 1/2 by 11 inches. The title of the project and permit number must be noted on the cover. While ring-binding of reports is acceptable, stapled and taped and/or perfect binding is preferred]. (2) Two copies of the draft permit report must be submitted to the Texas Antiquities Committee, P.O. Box 12276, Capitol Station, Austin, Texas 78711-2276 for review prior to the production of the final report. The draft report does not have to be bound, but should contain all of the basic content elements required for the final report. The final report must also contain any revisions in the draft that are required in writing by the committee.
                  [The title page of the report must contain the following information: type of investigation; project name; county or counties; authors, indicating which is the principal investigator; name and location of the sponsoring agency; Texas Antiquities Committee permit number, and data and place of publication]. (3) Upon completion of a permitted project, the permittee or principal investigator, investigative firm, state agency, or political subdivision shall furnish the Texas Antiquities Committee, P.O. Box 12276, Capitol Station, Austin, Texas 78711-2276 with 20 copies of the report at no charge to the committee; a completed Department of Antiquities Protection Abstract Form; and proof of the accession of the artifact collection and related field notes.
                    [The report must contain a table of contents and abstract; a list of figures and/or illustrations; definitions of terms used; a map of the project area; a map that specifically locates all cultural resources discovered or investigated; a discussion of the history and previous investigations (including documentary evidence) in the general as well as surrounding areas; a statement and justification of research design and how it was fulfilled; appropriate environmental data; analysis and interpretation of all recovered data and materials; name of facility where recovered materials and other data are permanently stored; specific recommendations of sites which are eligible for designation or should retain State Archeological Landmark status and of sites which appear to be eligible for nomination to the National Register of Historic Places; recommendations, including complete budget estimates, for mitigation of loss or further investigation if cultural resources will be adversely affected by a proposed project; and a list of references cited. [(4) Two copies of the draft of the permit report must be submitted to the Antiquities Committee, P.O. Box 12276, Capitol Station, Austin, Texas 78711-2276 for review prior to the production of the final report. The draft report does not have to be bound but should contain all of the basic content elements required for the final report. The final report must also contain any revisions in the draft that are required in writing by the committee. [(5) Upon completion of an investigation of a State Archeological Landmark, the permittee or principal investigator, will furnish the Texas Antiquities Committee, P.O. Box 12276, Capitol Station, Austin, Texas 78711-2276 with 12 copies of the report at no charge to the committee.] (b) When antiquities permit investigations result in negative findings
                      [no archeological sites are discovered nor artifacts recovered from a permit investigation], the report standards listed in subsection (a) of this section are
                        [can be] modified to meet CTA Guidelines for Cultural Resources Management Reports. The principal investigator, investigative firm, state agency, and/or the political subdivision shall furnish the committee with 20 (twenty) copies of the Short Report at no charge to the Committee along with a completed Department of Antiquities Protection Abstract Form.
                          [a shorter negative results report or letter report. Letter reports must be authorized in advance by the committee and must contain the following minimum report standards: [(1) formatted on 8 1/2-by-11 inch paper, stapled or ring binding with all appendices attached; [(2) a title page that must contain the following information: project name; type of investigation, county or counties; authors, indicating which is the principal investigator, name of sponsoring agency; permit number; date; [(3) an abstract; [(4) project map showing the permit area with investigation areas clearly marked; [(5) historical documentation of the permit area and surrounding region (region to be defined by the committee); [(6) research design and scope of work/methodology; and [(7) conclusions.] sec.41.27. Disposition of Archeological Artifacts and Data. (a)-(b) (No change.) (c) Housing, conserving, and exhibiting antiquities from State Archeological Landmarks. (1) After investigation of a State Archeological Landmark has culminated in the reporting of results, the antiquities will be permanently preserved in research collections at the curatorial institution approved by the committee. Prior to the expiration of a permit, written proof that archeological collections and related field notes are housed in a curatorial facility is required. Failure to demonstrate proof before the permits expiration date, will result in the permit being considered defaulted. (2) By January 1, 2000, institutions that curate artifacts recovered under antiquities permit(s) must hold some level of certification through the Council of Texas Archeologists Accredited Archeological Repository Program.
                            Institutions housing antiquities from State Archeological Landmarks will be responsible for adequate security of the collections, continued conservation, periodic inventory, and for making the collections available to qualified institutions, individuals, or corporations for research purposes. (3) (No change.) (d) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331489 Mark H. Denton Certifying Official Texas Antiquities Committee Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-6096 TITLE 16. ECONOMIC REGULATION Part III. Texas Alcoholic Beverage Commission Chapter 31. Administration Administrative Functions of the Commission 16 TAC sec.31.4 The Texas Alcoholic Beverage Commission proposes a new s31.4, concerning the construction, size, and display requirements for a sign to be posted by licensees and permittees advising them to inform the Texas Alcoholic Beverage Commission should they have a complaint as required by the Alcoholic Beverage Code, sec.5.53. Gayle Gordon, general counsel, has determined that there will not be fiscal implications as a result of enforcing or administering the section on state or local government. Ms. Gordon also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be increased public awareness of the functions of the Texas Alcoholic Beverage Commission and the receipt and resolution of complaints heretofore unpresented. The effect on small business will be negligible. There will be no effect on small businesses. The anticipated economic cost to persons who are required to comply with the section as proposed will be negligible. Comments on the proposal may be submitted to Gayle Gordon, General Counsel, P.O. Box 13127, Austin, Texas 78711, (512) 206-3204. The new section is proposed under the Alcoholic Beverage Code, sec.5.53, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of this Code. Cross Reference-Title 3, Texas Alcoholic Beverage Code. sec.31.4. Public Information Signs. (a) Any licensed business location in the state which sells or serves alcoholic beverages to the ultimate consumer shall display at his place of business in a prominent place easily seen by the public, i.e. near the door or by the cash register, a sign that provides the following information: "If you have a compliant about any TABC licensee or permittee please contact the Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711-3127, or phone (512) 458-2500." (b) This sign shall be no small than 8-1/2" by 3-1/2" and shall be in lettering or type of a size sufficient to render it both conspicuous and readily legible. (c) The sign shall be made of sturdy material; paper weight shall be no less than 65 number stock. (d) The responsibility of furnishing the required sign is the sole responsibility of the licensee or permittee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331569 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 206-3204 Chapter 33. Licensing Bonds 16 TAC sec.33.22 The Texas Alcoholic Beverage Commission proposes an amendment to sec.33.22, concerning tax bonds for brew pub licenses, setting out bonding requirements and amounts as required by the Alcoholic Beverage Code, sec.74.01, to insure payment of excise tax on products produced by this class of license. Brian Guenthner, acting director of licensing, has determined that there will not be fiscal implications as a result of enforcing or administering the section, except to the permittee or licensee who will bear the cost of the bond. Mr. Guenthner, also has determined that for each year of the first five-years the section as proposed is in effect, the public benefit anticipated as a result of enforcing the section will be the collection of taxes on products produced by licensees. The cost of compliance with the section for small businesses will be the cost for premiums of bonds, which will increase with the amount of sales. The cost per $100 of sales will be same for all size businesses. The possible economic cost to persons who are required to comply with the section as proposed will be the cost of bond, up to as much as $500 a year. Comments on the proposal may be submitted to Gayle Gordon, General Counsel, P.O. Box 13127, Austin, Texas 78711. The telephone number is (512) 206-3204. The amendment is proposed under the Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provision of the Alcoholic Beverage Code. Cross reference-Texas Alcoholic Beverage Code, sec.74. 01. sec.33.22. [Beer] Tax Bonds. (a) Each holder of a general distributor's license, local distributor's license, or branch distributor's license shall furnish a bond to insure the payment of the tax on beer imposed by the Texas Alcoholic Beverage Code, sec.203.01. Each holder of a brew pub license shall furnish a bond to insure the payment of the tax on beer and/or ale or malt liquor imposed by the Alcoholic Beverage Code, sec.203.01 and sec.201.42, respectively. (b)-(n) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331568 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 206-3204 License and Permit Actions 16 TAC sec.33.31 The Texas Alcoholic Beverage Commission proposes new sec.33.31, concerning procedures for voluntary suspension or cancellation of a license or permit and reinstatement. Brian Guenthner, acting director of the Licensing Division, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Guenthner, acting director of the Licensing Division, also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section as proposed will be the publishing and documentation of this agency's current and past policy and procedure concerning this issue. Comments on the proposal may be submitted to Brian Guenthner, Acting Director, Licensing Division, P.O. Box 13127, Austin, Texas 78711. The telephone number is (512) 206-3360. The new section is proposed under the Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. Cross reference-Title 3, Texas Alcoholic Beverage Code. sec.33.31. Voluntary Suspension or Cancellation of a License or Permit and Reinstatement. (a) The commission may without a hearing inactivate and place in suspense a license or permit. (1) This may be accomplished by submission of an affidavit from the landlord or landlord's representative, in a form prescribed by the administrator, indicating that the premises has been abandoned and the permittee or licensee no longer has any interest in the premises; or (2) by submission of the actual license or permit; or (3) by a sworn statement submitted by the licensee or permittee requesting the license or permit to be placed in suspense, including a statement that the license or permit is lost or the permittee or licensee is unable to surrender it. (b) Any time after a permit or license has been activated and placed in voluntary suspense and before it expires, a permit or license may be reinstated if the necessary qualifications and requirements are met. A reinstatement application must meet the same requirements and qualifications as an applicant for an original permit or license except the permit or license fee for the remainder of the permit or license year is not required. (c) A license or permit may be renewed while placed in suspense if, prior to expiration, a completed renewal with required supporting documents and all necessary state fees and surcharges is filed in accordance with all applicable sections of the code or rules. (d) If no administrative action is pending against the permit or license, a license or permit may be voluntarily cancelled upon receipt of: (1) the original permit or license, submitted to the commission, signed by the permittee or licensee on the reverse side with the notation voluntary cancellation and the date; or (2) a sworn statement by the licensee or permittee stating that the license or permit is lost or unavailable to surrender and requesting the license or permit to be voluntarily cancelled. (e) The effective date of the license and/or permit placed in voluntary suspense or voluntarily cancelled will be the date the statement or other document is received in the licensing division or any other date agreed to by the parties. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331570 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 206-3204 Chapter 55. Bingo Regulation and Tax 16 TAC sec.55.543 The Texas Alcoholic Beverage Commission proposes an amendment to sec.55. 543, concerning denials; suspensions; revocations; hearings. The section amends subsection (c)(2) to require a hearing before a license may be suspended or revoked and amends subsection (c)(4) to remove the requirement that a licensee in a revocation or suspension proceeding have requested a hearing in order to continue operating. Wayne Smyth, supervisor of compliance of the Bingo Division, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Wayne Smyth also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section as proposed will be avoiding confusion by amending the section to correspond with a change in the governing statute. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to James Mercer, Director, Bingo Division, P.O. Box 13127, Austin, Texas 78711, (512) 206-3276. The amendment is proposed under Texas Civil Statutes, Article 179d, sec.16(a) , which provide the Commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. The following statutes are affected by this amendment: Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.16(e). sec.55.543. Denials; Suspensions; Revocations; Hearings. (a)-(b) (No change.) (c) Hearings. (1) (No change.) (2) At the same time that
                              [After] a notice of proposed suspension or revocation is
                                [has been] served, the licensee will be notified that the notice will be forwarded to the State Office of Administrative Hearings to be Placed on the hearings docket. The Commission shall forward the notice to that agency.
                                  [or holder will have an opportunity for a hearing. The hearing may be held within 20 days from the date the Commission receives the request. If the licensee or holder does not request a hearing within 30 days after the date of the notice of proposed suspension or revocation, the opportunity for a hearing is waived and a final order will be issued.] (3)-(4) (No change.) (d)-(e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331571 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 206-3204 16 TAC sec.55.545 The Texas Alcoholic Beverage Commission proposes an amendment to sec.55. 545, concerning licenses, fees, and bonds for conduct of bingo and commercial lessor. The section amends subsection (a)(4) by adding a new subparagraph (F), providing that the term "tax" as used in that paragraph (4) includes the fee on prizes. The section amends subsection (a) (5) to remove provisions requiring that the applicant's premises must not be adequate and suitable for bingo. The amendment also deletes subsection (b)(3)(D), relating to whether or not a commercial lessor's premises have become unavailable to the lessor for reasons beyond the lessor's control. Amy Harrison, supervisor of licensing of the Bingo Division, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Ms. Harrison also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be clarifying that the fee on prizes is a tax for bond purposes and repealing restrictions on playing in a commercial hall and in renewing a lessor's license for a new location which have been removed from Texas Civil Statutes, Article 179d, the Bingo Enabling Act. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to James Mercer, Director, Bingo Division, P.O. Box 13127, Austin, Texas 78711, (512) 206-3276. The amendment is proposed under Texas Civil Statutes, Article 179d, sec.16(a) , which provide the Commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. The following Statutes are affected by this amendment: Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.13 and sec.38. sec.55.545. Licenses, Fees, and Bonds for Conduct of Bingo and Commercial Lessor. (a) Annual license to conduct bingo games. (1)-(3) (No change.) (4) Bond or other security. Each application for an annual license to conduct bingo must be accompanied by a bond or other security equal to the applicant's estimated quarterly tax liability. If the amount is estimated to be less than $1,900, no bond or other security will be required, unless the Commission determines a bond or other security is necessary based on the applicant's history at recordkeeping, reporting, and payment of tax. No new bond will be required upon renewal if the licensee would be eligible to have an existing bond released under subparagraph (D) of this paragraph. If a bond or other form of security is required, no license will be issued until such bond or other security has been posted. (A)-(E) (No change.) (F) As used in this paragraph the term "tax" includes the fee on prizes. (5) Application to conduct bingo at premises of a commercial lessor. [(A) Organization findings.] An organization applying to conduct bingo at premises other than those used by it for its general activities shall submit with its application a certified copy of the minutes of the governing board of the local unit of the applicant voting to conduct bingo at a location other than
                                    [that] the premises used by the organization for its general activities [are not adequate and suitable for bingo and stating the specific reasons why these premises are not adequate and suitable]. If the articles of incorporation, bylaws, or other organizing instrument of the applicant requires approval by one or more of the state, national, or other higher governing bodies of the organization for the local unit to conduct any of its activities at a separate location, then the applicant shall also submit certified copies of the required approval by those governing bodies. [(B) Commission determination. The Commission shall conduct a physical examination of those premises. In determining whether those premises are adequate and suitable for the conduct of bingo, the Commission shall consider: [(i) the size of the premises; [(ii) the present physical condition of the premises and the expense involved in improving that condition; [(iii) the restroom facilities available; [(iv) the heating and air conditioning, if any, and its condition; [(v) the parking available on the premises and in the immediate area of the premises; and [(vi) if the premises have been used for the conduct of bingo, the records of the applicant while conducting bingo on those premises.] (b) Commercial license to lease bingo premises. (1) -(2) (No change.) (3) License. (A)-(C) (No change.) [(D) A commercial lessor seeking to renew or amend its license for a different location on grounds that the premises leased have become unavailable due to reasons beyond the commercial lessor's control shall file with the Commission a written application stating in detail the circumstances rendering the premises unavailable together with all available documentation of the fact. If physical damage to the leased premises is claimed as the reason the premises are no longer available, the application shall: [(i) state when the damage occurred and the cause of the damage; [(ii) specify the areas of the building damaged, the nature and extent of the damage; [(iii) state who has responsibility for repairing the premises and include documentation; and [(iv) state whether the damage has been reported to an insurance company, and, if so, provide the name and address of the insurance company and the name and telephone number of the contact person representing the insurance company in regard to adjustment of the loss. A copy of the report to the insurance company, and a copy of any written assessment of the loss by the insurance company, shall be provided, if possible. If the loss or damage was reported to a local fire department, police department or other local authorities, the date of said report shall be given, as well as a copy of any written report to or by said authority with respect to the loss. [(E) A commercial lessor may not, in any event, renew its license for any location outside the boundaries of the county where the licensed premises were located on June 10, 1989.] (D)
                                      [(F)] When more organizations apply to play bingo on premises of a commercial lessor than can be licensed for the location, the Commission will process only the number of applications for which there are openings with the commercial lessor, taking the applications in the order in which they are received. Additional applications over and beyond the number that may be licensed for the commercial lessor's premises will not be processed until there is an opening with the commercial lessor and no other application pending for the opening. (4) (No change.) (c)-(m) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331572 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 206-3204 16 TAC sec.55.548 The Texas Alcoholic Beverage Commission proposes an amendment to sec.55. 548, concerning general restrictions on the conduct of bingo. The section amends subsection (a) to delete the provision prohibiting a person from being an operator for more than one organization, because that restriction was removed from Texas Civil Statutes, Article 179d, sec.19(a) by the 73rd Legislature, Regular Session, House Bill 2771. Wayne Smyth, supervisor in the Bingo Division of the Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Smyth also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be allowing the Commission to enforce added or amended section of the Bingo Enabling Act. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to James Mercer, Director, Bingo Division, P.O. Box 13127, Austin, Texas 78711, (512) 206-3276. The amendment is proposed under Texas Civil Statutes, Article 179d, sec.16(a) , which provide the Commission with authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. The following Statute is affected by this amendment: Texas Civil Statutes, Article 179d, sec.19(a). sec.55.548. General Restrictions on the Conduct of Bingo. (a) Who may conduct bingo. (1) Except for those groups set out in sec.55.546, of this title (relating to Exceptions from Licensing Requirements), only an authorized organization licensed by the Texas Alcoholic Beverage Commission (Commission) under sec.55.545(a), (c), or (d) of this title (relating to Licenses, Fees, and Bonds for Conduct of Bingo and Commercial Lessor) may conduct bingo. Only persons who have been bona fide members of a licensed organization for at least the preceding calendar year may operate, manage, conduct, promote, or administer the organization's games of bingo unless otherwise excluded by this subsection. [No person may be an operator for more than one organization.] (2) (No change.) (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 authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331573 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 206-3204 16 TAC sec.55.550 The Texas Alcoholic Beverage Commission proposes an amendment to sec.55. 550, concerning bingo reports. The section amends subsection (a) to change the due date of the quarterly information reports and to add a reference to prizes; amends subsection (b) to make that subsection applicable only to bingo gross receipts taxes for periods before the date of the repeal of that tax, September 1, 1993; amends subsection (c) to change the prize fee reports from semi-monthly to quarterly and to change the due date; amends subsection (d) to change the due date of the quarterly bingo rental tax report; and amends subsection (f) to specify the reporting periods to which the amendment applies and to delete the existing expiration date of August 31, 1993. Wayne Smyth, supervisor of compliance of the Bingo Division, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Smyth, also has determined that for each of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section as proposed will be bringing the provisions of the section into compliance with recent amendments to Texas Civil Statutes, Article 179d, Bingo Enabling Act, and specifying in subsection (f) when under previous provisions in the section and changes in the statute the various changes in reporting and tax payment became effective. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to James Mercer, Director, Bingo Division, P.O. Box 13127, Austin, Texas 78711, (512) 206-3276. The amendment is proposed under Texas Civil Statutes, Article 179d, sec.16(a) , which provide the Commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. The following Statutes are affected by this amendment: Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.sec.2B, 19b, 20, 23, 24, 25, and 29. sec.55.550. Bingo Reports. (a) Quarterly reports for information relating to the conduct of bingo games. (1) An authorized organization holding an annual license, temporary license, or a temporary authorization to conduct bingo must file on a form provided by the Texas Alcoholic Beverage Commission (Commission) a quarterly report for statistical information relating to the conduct of bingo games. The report must be filed with the Commission, and the report must be filed on or before the 15th
                                        [25th] day of the month following the end of the calendar quarter even if there were no gross receipts or prizes
                                          [gross receipts subject to tax] for that quarter. (2) (No change.) (b) Semi-monthly bingo gross receipts tax reports. (1)-(3) (No change.) (4) This subsection applies only to bingo gross receipts taxes for periods before September 1, 1993. (c) Quarterly
                                            [Semi-monthly] reports for fee on prizes. (1) An authorized organization holding an annual license, temporary license, or temporary authorization to conduct bingo must file on a form provided by the Texas Alcoholic Beverage Commission a quarterly
                                              [semi-monthly] report for the fees on bingo prizes. The report must be filed with the Commission, must be accompanied by any fees due, and must be filed on or before the 15th
                                                [25th] day of the [month for the first 15 days of the month and on or before the 10th day of the] following month [for the remainder of the month], even if there were no prizes awarded during the report period. (2) (No change.) (d) Commercial Lessor. A person holding an annual license or a temporary authorization to lease bingo premises must file on a form provided by the Texas Alcoholic Beverage Commission a quarterly report for bingo rental taxes and statistical information relating to the leasing of bingo premises. The report must be filed with the Commission, must be accompanied by any tax due, and must be filed on or before the 15th
                                                  [25th] day of the month following the end of the calendar quarter even if there were no gross rentals subject to tax for that quarter. (e) (No change.) (f) Effective date. Except as provided in subsection (a) of this section, this
                                                    [This] amendment is effective for reporting period beginning September 1, 1993
                                                      [October 16, 1992, and shall expire on May 31, 1993]. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331574 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 206-3204 Chapter 55. Bingo Regulation Bingo Regulation and Tax 16 TAC sec.55.555 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Alcoholic Beverage Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Alcoholic Beverage Commission proposes the repeal of sec.55.555, concerning minimum distribution. The credit set out in the section toward the minimum charitable distribution has been replaced by a different formula added to Texas Civil Statutes, Article 179d, sec.19a (k), as amended by the 73rd Legislature, Regular Session, House Bill 2771. Wayne Smyth, supervisor of compliance of the Bingo Division, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Mr. Smyth, also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be avoiding confusion by repealing a section that has been replaced in the governing statute by a different formula for computing the credit toward the minimum charitable distribution. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. Comments on the proposal may be submitted to James Mercer, Director, Bingo Division, P.O. Box 13127, Austin, Texas 78711, (512) 206-3276. The repeal is proposed under Texas Civil Statutes, Article 179d, sec.16(a), which authorize the Commission to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. The following statute is affected by this amendment: Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.19a(k). sec.55.555. Minimum Distribution. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331575 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 206-3204 16 TAC sec.55.566 The Texas Alcoholic Beverage Commission proposes new sec.55.566, concerning amendment of commercial license to lease bingo premises. The new section specifies under what conditions a commercial license to lease bingo premises may be amended to change the method of organization from a sole proprietorship to a corporation. This amendment is proposed to implement Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.13(j), as amended by the 73rd Legislature, Regular Session, House Bill 2771. Wayne Smyth, supervisor of compliance of the Bingo Division, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Smyth, also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section as proposed will be carrying out the legislative mandate to allow commercial lessors who are sole proprietors to incorporate, thus allowing the license to continue in effect upon the death of that individual and allowing the subsequent sale of stock in the corporation. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to James Mercer, Director, Bingo Division, P.O. Box 13127, Austin, Texas 78711, (512) 206-3276. The amendment is proposed under Texas Civil Statutes, Article 179d, sec.16(a) , which provide the Commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. The following statutes and rules are affected by this new section: Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.13(j), and 16 TAC sec.55. 545(b). sec.55.566. Amendment of Commercial License to Lease Bingo Premises. (a) An individual natural person who holds a commercial license to lease bingo premises may amend that license to show the method of organization as a corporation and to show the licensee as a corporation. All of the stock in that corporation must be owned either by that natural person or by that person and his or her spouse. This restriction on ownership does not prevent the sale of stock in the corporation after the license has been amended to show the corporation as the licensee. (b) The application to amend the license shall be submitted on a form prescribed by the Commission and must be accompanied by a copy of the Articles of Incorporation, proof of the stock ownership, and any necessary new or amended leases transferring an interest in the licensed premises to the corporation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331576 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 206-3204 TITLE 22. EXAMINING BOARD Part XXXII. 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 proposes the repeal of existing sec.sec.741.1-741.2, 741.11-741.27, 741.41, 741. 61-741.64, 741.81-741.84, 741.101-741.103, 741.121-741.123, 741.141-741.145, 741.161-741.163, 741.181-741.182, 741.191-741.199, 741.208-741.210, and 741. 301 and proposes new sections sec.sec.741.1-741.2, 741.11-741.26, 741.31-741.32, 741.41, 741.61-741.66, 741.81-741.87, 741.91, 741.101-741.103, 741.121-741.123, 741.141-741.143, 741.161-741.166, 741.181-741.182, 741.191- 741.199, 741. 301- 741.303, concerning the licensing and regulation of speech-language pathologists and audiologists. Senate Bill 1077, passed by the 73rd Legislature, 1993, amended the current Act substantially, and subsequently changed the title to the State Board of Examiners for Speech-Language Pathology and Audiology. The repeal is proposed to allow for the adoption of new rules to encompass these changes and reorganize the sections. These sections define terms commonly used in the professions; the duties and powers of the board; open meetings and open records procedures; how one may petition for adoption of a rule; communication and hearing screenings; establishes a code of ethics; sets out the requirements for licensure of speech-language pathologists, audiologists, interns and assistants; dual licensure; provisional license; temporary certificate of registration; registration to fit and dispense hearing aids; establishes the application procedures, issuance of license and registration; establishes the renewal process, including continuing education, inactive status, late renewal and renewal of licensee on military duty; sets out applicable fees and processing procedures; establishes the basis and procedures for denial, probation, suspension, or revocation of licensure or registration; complaint procedures; licensing or registration of individuals with criminal backgrounds; formal hearings; surrender of license; informal disposition or proceedings; default orders; and provides for publications and consumer information. The text of the repealed sections will not be printed in the Texas Register but may be examined in the board office. Dorothy Cawthon, Executive Secretary, has determined that there will be fiscal implications for state government as a result of enforcing or administering the rules. The effect on state government will be an estimated increase of revenues of $46,320 for each year of fiscal years 1994-1998. There will be no fiscal implications for local government as a result of enforcing or administering the sections. Ms. Cawthon also has determined that for each year of the first five years that the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to assure the licensing and regulation of speech- language pathologists and audiologists continues to identify competent practitioners. There will also be benefits from a standardized enforcement process; provision of adequate enforcement authority and establishment of a standard approach for licensing out-of-state practitioners seeking licensure in Texas. An additional benefit allows audiologists to register to fit and dispense hearing aids. The economic cost to licensees will be an annual increase of $5.00 In addition, audiologists or interns in audiology who register to fit and dispense hearing aids must pay $10 annually. The estimated cost to an individual who, effective January 1, 1994, will be required to hold an intern license is $70. A licensee who renews after the grace period shall be required to pay an additional one time fee of approximately $10. Comments on the proposal may be submitted to Dorothy Cawthon, State Board of Examiners for Speech-Language Pathology and Audiology, 1100 West 49th Street, Austin, Texas 78756-3183, (512) 834-6627. Public comments will be accepted for 30 days after publication of the sections in the Texas Register. Subchapter A. Introduction 22 TAC sec.741.1, sec.741.2 (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 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.) The repeal and new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.1. Purpose. sec.741.2. Definitions. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331548 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.1. Purpose. The purpose of this subchapter is to set out the organization and administration and other general procedures and policies governing the operation of the State Board of Examiners for Speech-Language Pathology and Audiology. sec.741.2. Definitions. The following words and terms when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. Act-The law relating to the licensing and regulation of speech-language pathologists and audiologists, Texas Civil Statutes, Article 4512j. Assistant in audiology-An individual who works under the direct on-site supervision and direction of a licensed audiologist and is licensed under sec.741.85 of this title (relating to Requirements for an Assistant in Audiology License). Assistant in speech-language pathology-An individual who works under the direct, on-site supervision and direction of a licensed speech-language pathologist and is licensed under sec.741.65 of this title (relating to Requirements for an Assistant in Speech-Language Pathology License). Audiologist-An individual who meets the requirements of Subchapter H of this chapter (relating to Application Procedures) and holds a valid license to practice audiology. Board-The State Board of Examiners for Speech-Language Pathology and Audiology. Department-The Texas Department of Health. Ear specialist -A licensed physician who specializes in diseases of the ear and is medically trained to identify the symptoms of deafness in the context of the total health of the patient, and is qualified by special training to diagnose and treat hearing loss. Such physicians are also known as otolaryngologists, otologists, and otorhinolaryngologists. Extended absence -More than two consecutive working days for any single continuing education experience. Health care professional-An individual required to be licensed or registered by this Act or any person licensed, certified, or registered by the state in a health-related profession. Hearing aid/hearing instrument-A device designed for, offered for the purpose of, or represented as aiding persons with or compensating for, impaired hearing. Intern in audiology -An individual completing the supervised professional experience as required by sec.741.81(10) of this title (relating to Requirements for a Audiology License) and licensed under sec.741. 82 of this title (relating to Requirements for an Intern in Audiology License). Intern in speech-language pathology-An individual completing the supervised professional experience as required by sec.741.61(10) of this title (relating to Requirements for a Speech-Language Pathology License) and licensed under sec.741.62 of this title (relating to Requirements for an Intern in Speech- Language Pathology License). License-The document required by the Act which provides verification that an individual has met the requirements for qualification and practice as set forth in the Act and as interpreted within this chapter. Month-A calendar month. Person-An individual, a corporation, partnership, or other legal entity. Practice of audiology-The application of nonmedical principles, methods and procedures for the measurement, testing, appraisal, prediction, consultation, counseling, habilitation, rehabilitation, or instruction related to disorders of the auditory or vestibular systems for the purpose of rendering or offering to render services or for participating in the planning, directing or conducting of programs which are designed to modify communicative disorders involving speech, language, auditory or vestibular function, or other aberrant behavior relating to hearing loss. An audiologist may engage in any tasks, procedures, acts, or practices that are necessary for the evaluation of hearing, for training in the use of amplification including hearing aid/hearing instrument, for the making of earmolds for hearing aid/hearing instrument, for the fitting, dispensing, and sale of hearing aid/hearing instrument or for the management of cerumen. An audiologist may participate in consultation regarding noise control and hearing conservation, may provide evaluations of environment or equipment including calibration of equipment used in testing auditory functioning and hearing conservation, and may perform the basic speech and language screening tests and procedures consistent with his or her training. Practice of speech-language pathology-The application of nonmedical principles, methods, and procedures for the measurement, testing, evaluation, prediction, counseling, habilitation, rehabilitation, or instruction related to the development and disorders of communication, including speech, voice, language, oral pharyngeal function, or cognitive processes, for the purpose of rendering or offering to render services or for participating in the planning, directing or conducting of programs which are designed to modify communicative disorders and conditions in individuals or groups of individuals. Speech- language pathologists may perform basic audiometric screening tests and aural rehabilitation or rehabilitation. Provisional license -A nonrenewable license issued to an applicant who meets the requirements of sec.741.64 of this title (relating to Requirements for a Provisional Speech-Language Pathology License) or sec.741.84 of this title (relating to Requirements for a Provisional Audiology License). Registrant-An individual issued a temporary certificate of registration or a registration to fit and dispense hearing aids/hearing instruments. Registration to fit and dispense hearing aids/hearing instruments-A registration issued to an audiologist or intern in audiology licensed under this Act who completed a form received from the board office that declared his or her intent to fit and dispense hearing aids/hearing instruments as required by sec.741.87 of this title (relating to Requirements for Registration of Audiologist and Intern in Audiology who Fit and Dispense Hearing Aids/Hearing Instruments). Sale or purchase -A lease or rental of a hearing aid/hearing instrument to a member of the consuming public who is a user or prospective user of a hearing aid/hearing instrument. Speech-language pathologist -An individual who meets the requirements of Subchapter E of this chapter (relating to Requirements for Licensure and Registration of Speech-Language Pathologists) and holds a valid license to practice speech-language pathology. Student in audiology -An individual pursuing a course of study leading to a degree with an emphasis in audiology and who works within the educational institution or one of its cooperating programs under the direct, on-site supervision and direction of an audiologist licensed under the Act. Student in speech-language pathology-An individual pursuing a course of study leading to a degree with an emphasis in speech-language pathology and who works within the educational institution or one of its cooperating programs under the direct, on-site supervision and direction of a speech-language pathologist licensed under the Act. Temporary certificate of registration-A nonrenewable document issued to an individual who meets all requirements for licensure as required by Section 741.61 of this title (relating to Requirements for a Speech-Language Pathology License) or sec.741.81 of this title (relating to Requirements for an Audiology License) and is in the processing of taking the examination as required by sec.741.122 of this title (relating to Administration). Used hearing aid/hearing instrument-A hearing aid/hearing instrument that has been worn for any period of time by a user. However, a hearing aid/hearing instrument shall not be considered "used" merely because it has been worn by a prospective user as a part of a bona fide hearing aid/hearing instrument evaluation conducted to determine whether to select that particular hearing aid for that prospective user, if such evaluation has been conducted in the presence of the dispenser or a hearing aid/hearing instruments health professional selected by the dispenser to assist the buyer in making such a determination. Year-A calendar year. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331535 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter B. The Committee 22 TAC sec.sec.741.11-741.27 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.11. Officers. sec.741.12. Subcommittees. sec.741.13. Transaction of Official Business. sec.741.14. Elections. sec.741.15. Executive Secretary. sec.741.16. Agendas. sec.741.17. Meetings. sec.741.18. Rules of Parliamentary Procedures. sec.741.19. Minutes. sec.741.20. Attendance. sec.741.21. Official Records. sec.741.22. Seal. sec.741.23. Policy Against Discrimination. sec.741.24. Impartiality. sec.741.25. Policy Regarding Handicapped or Disabled Applicants. sec.741.26. Reimbursement for Expenses. sec.741.27. Petition for Adoption of a Rule. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331547 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter B. The Board 22 TAC sec.sec.741. 11-741.26 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.11. Officers. (a) Chairperson. (1) The chairperson shall preside at all meetings at which he or she is in attendance and perform all duties prescribed by law or this chapter. (2) The chairperson is authorized by the board to make day-to-day minor decisions regarding board activities in order to facilitate the responsiveness and effectiveness of the board. The executive secretary shall keep a tabulation of the minor decisions and include them in the executive secretary's report to the board. (b) Vice-Chairperson. (1) The vice-chairperson shall perform the duties of the chair in the absence or disability of the chair. (2) Should the office of the chairperson become vacant, the vice-chairperson shall serve until a successor is named. (c) Secretary-Treasurer. (1) The secretary-treasurer will sign the approved minutes of the board. (2) The secretary-treasurer will sign other approved documents of the board in the absence of the chairperson and vice-chairperson. sec.741.12. Committees. The chairperson may appoint board members to committees to assist the board in its work. Other individuals may be appointed to committees. All committees appointed by the chairperson shall consist of no more than four members and shall make regular reports to the board by interim written reports or at regular meetings. The board shall direct all such reports to the executive secretary for distribution. sec.741.13. Transaction of Official Business. (a) The board may transact official business only when in a legally constituted meeting with a quorum present. Five members of the board constitute a quorum. (b) The board shall not be bound in any way by any statement or action on the part of any board member, committee, or staff member except when a statement or action is in pursuance of the specific instruction of the board. sec.741.14. Elections. (a) At the meeting held nearest to August 31 of each year, the board shall elect, by a simple majority vote of those members present, a chairperson, a vice-chairperson, and a secretary-treasurer. The chairperson must hold a valid license under the Act. (b) A vacancy which occurs in the offices of chairperson, vice-chairperson, or secretary-treasurer may be filled by simple majority vote of those members present at any regular meeting. sec.741.15. Agendas. (a) The executive secretary shall prepare and submit to each member of the board prior to each meeting an agenda which includes items required by law, items requested by members, and other matters of board business which have been approved for discussion by the chair. (b) The official agenda of a board meeting shall be filed with the Texas Secretary of State as required by law. sec.741.16. Meetings. (a) The board shall hold at least two regular meetings and additional meetings as necessary during each year ending on August 31. (b) The chairperson may call meetings after consultation with the board. Meetings may also be called by a majority of members so voting at a regular meeting, or by the written request of any three members. (c) Meetings shall be announced and conducted under the provisions of the law relating to open meetings, Government Code, Chapter 551. sec.741.17. Rules of Parliamentary Procedures. All official decisions made by the board shall be made according to parliamentary procedure as set forth in Robert's Rules of Order Revised. If a question arises concerning interpretation of Robert's Rules of Order Revised, the chairperson or vice-chairperson will make the decision. sec.741.18. Minutes. (a) The approved minutes of the board meetings are official only when affixed with the original signature of the chairperson, the secretary-treasurer, and the executive secretary, and authenticated by the seal of the board. (b) Prior to approval by the board, drafts of the minutes of each meeting shall be forwarded to each member for review and comments or corrections. (c) The minutes shall reflect a dissenting vote on a motion. A person who dissents on a motion may prepare a written statement explaining the person's reason for dissent and the statement shall be placed in the minutes. sec.741.19. Attendance. Members are to attend regular meetings as scheduled. The attendance records of the members may be made available to the Governor of the State of Texas and/or the Texas Sunset Advisory Commission. sec.741.20. Official Records. (a) All official records of the board, except files containing information considered confidential under the provisions of the law relating to open records, Government Code, Chapter 552, shall be open for inspection during regular office hours. (b) An individual who wishes to examine official records shall be required to show proof of identification and sign statements listing the records requested and to be examined. (c) Official records shall not be taken from board offices; however, individuals may obtain photocopies of files upon written request and by paying, in advance, the costs as set by the department. Payment shall be made prior to the release of the records and may be made by personal check. sec.741.21. Seal. The official seal of the board shall consist of a circle with the words "State Board of Examiners for Speech-Language Pathology and Audiology" circularly arranged about the inner edge of the circle, and in the center of the circle there shall be a five-pointed star, surrounded by the live oak and the olive branches common to official seals of the State of Texas. sec.741.22. Policy Against Discrimination. The board shall make no decision in the discharge of its statutory authority with regard to any individual's race, religion, color, sex, or national origin. sec.741.23. Impartiality. Any board member who is unable to be impartial in any proceeding before the board such as that pertaining to an applicant's eligibility for licensure or a complaint against or violation by a licensee, shall so declare this partiality to the board and shall not participate in any board proceedings involving that individual. sec.741.24. Policy Regarding Handicapped or Disabled Applicants. (a) The board will make an effort to accommodate the special problems and needs of handicapped or disabled individuals regarding the application and examination process. (b) The board may consider special requests for reasonable and appropriate arrangements for handicapped or disabled applicants. (c) Any special requests granted must not violate rules of the board or adversely affect the general welfare of the public. sec.741.25. Reimbursement for Expenses. (a) A board member is entitled to reimbursement for expenses incurred for transaction of board business. Reimbursement includes necessary and appropriate daily expenses (per diem) as well as transportation expenses which are necessary and appropriate for the transaction of board business. Reimbursement shall be governed by the latest General Appropriations Act passed by the Texas Legislature or other applicable law. (b) Payment to members of per diem and transportation expenses which are necessary and appropriate shall be transacted through official state vouchers which have been approved by the executive secretary. (c) At the closest regular meeting to officer elections, the board will review annual board expenditures and proposed budgets. sec.741.26. Petition for adoption of a rule. (a) Purpose. The purpose of this section is to delineate the board's procedures for the submission, consideration, and disposition of a petition to the board to adopt a rule. (b) Submission of the petition. (1) Any person may petition the board to adopt a rule. (2) The petition shall be in writing; shall state the petitioner's name, address, and telephone number; and shall contain the following: (A) a brief explanation of and justification for the proposed rule; (B) the text of the proposed rule prepared in a manner to indicate the words to be added or deleted from the current text, if any; (C) a statement of the statutory or other authority under which the rule is to be promulgated; and (D) the public benefit anticipated as a result of adopting the rule or the anticipated injury or inequity which could result from the failure to adopt the proposed rule. (3) The petition shall be mailed or delivered to the executive secretary, State Board or Examiners for Speech-Language Pathology and Audiology, 1100 West 49th Street, Austin, Texas 78756-3183. (c) Consideration and disposition of the petition. (1) Except as otherwise provided in paragraph (4) of this subsection, the executive secretary shall submit a completed petition to the board for its consideration. (2) Within 60 days after receipt of the completed petition by the executive secretary, the board shall either: (A) deny the petition; (B) initiate rule-making procedures in accordance with the Administrative Procedure Act, Government Code, Chapter 2001; or (C) deny parts of the petition and/or institute rule-making procedures on parts of the petition. (3) If the board denies the petition, the executive secretary shall give the petitioner written notice of the board's denial, including the reason(s) for the denial. (4) If the board initiates rule-making procedures, the version of the rule which the board proposes may differ from the version proposed by the petitioner. (d) Subsequent petitions to adopt the same or similar rules. All initial petitions for the adoption of a rule shall be presented to and decided by the board in accordance with the provisions of subsections (b) and (c) of this section. The board may refuse to consider any subsequent petition for the adoption of the same or similar rule submitted within six months after the date of the initial petition. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331534 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter C. Communication and Hearing Screenings 22 TAC sec.741.31, sec.741.32 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.31. Communication Screening. (a) Language screening involves a cursory assessment of an individual's use and comprehension of various aspects of language to determine if he or she may be deviant or not age appropriate. The aspects to be screened may include phonology, morphology, syntax, and semantics. Formal instruments and informal observations may be used for the assessment. If the screening is not passed, detailed evaluation is indicated. (b) Speech screening involves a cursory assessment of an individual's verbal performance to determine if any aspects of the behavior may be deviant or not age appropriate. Aspects of speech to be screened may include articulation or speech sound production, voice (including phonation and resonation), and fluency. Formal instruments and informal observations may be used for the assessment. If the screening is not passed, detailed evaluation is indicated. (c) Whenever possible language and speech screening should be conducted in the client's native language. (d) In order to conduct communication screening, any individual not licensed under this Act must present proof, upon request, of having been certified through the Texas Department of Health communication screening program by an instructor who was trained by a Texas licensed speech-language pathologist. sec.741.32. Hearing Screening. (a) Hearing screening is defined as the pass/fail result of a pure-tone hearing sweep check administered with a pure-tone audiometer at intensity levels and frequencies appropriate for screening. This definition expires July 31, 1994. (b) Pure-tone screening is an automated or manually administered individual pure-tone air conduction screening with pass/fail results for the purpose of rapidly identifying those persons with possible hearing impairment which has the potential of interfering with communication. Hearing screening will be conducted as follows: 20dB HL (re ANSI-1969) at the frequencies of 500, 1000, 2000, and 4000 Hz, unless tympanometric screening is also accomplished and, if so, screening at 500 may be omitted. This definition will become operational August 1, 1994. (c) Tympanometric screening is an automated or manually administered individual immittance screening with pass/fail results for the purpose of rapidly identifying those persons with possible outer and middle ear dysfunction. The screening protocol will include the visual inspection of the outer ear and external ear canal. This definition will become operational August 1, 1995. (d) Evoked response screening is an automated or manually administered individual auditory evoked response (including, but not limited to otoacoustic emissions and electrophysiological) screening with pass/fail results for the purpose of rapidly identifying those persons with possible hearing impairment. The definition will become operational August 1, 1995. (e) In order to conduct hearing screening, any individual not licensed under the Act must present proof, upon request, of having been certified through the Texas Department of Health hearing screening program by an instructor who was trained by a Texas licensed audiologist. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331533 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter C. The Practice of Speech-Language Pathology and Audiology 22 TAC sec.741.41 (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.) The repeal is proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.41. Code of Ethics. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331546 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter D. The Standards of Professional and Ethical Conduct 22 TAC sec.741.41 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.41. Code of Ethics. (a) This purpose of this subchapter is to establish the standards of professional and ethical conduct required of a speech-language pathologist, an audiologist, an intern and an assistant licensed or registered under the Act, and constitutes a code of ethics as authorized by the Act, sec.17(a)(3). It is the responsibility of all speech-language pathologists, audiologists, interns, and assistants licensed or registered under the Act to uphold the highest standards of integrity and ethical principles. An individual licensed or registered under the Act: (1) shall honor his or her professional responsibility to each client. (A) The licensee or registrant shall: (i) fully inform clients of the nature and possible effects of the services rendered by the individual licensed or registered under the Act; (ii) fully inform clients, in writing, of the results of an evaluation within 60 days; (iii) seek appropriate medical consultation whenever indicated; (iv) fully inform subjects participating in research or teaching activities of the nature and possible effects of these activities; (v) maintain accurate records of professional services rendered. Personal client records shall be made available to a client or the parent or guardian of a client upon request; and (vi) seek to identify competent, dependable referral sources for clients. (B) The licensee or registrant shall not: (i) engage in the medical treatment of speech-language and hearing disorders; (ii) guarantee, directly or by implication, the results of any therapeutic procedures. A reasonable statement of prognosis may be made, but caution must be exercised not to mislead clients to expect results that cannot be predicted from reliable evidence; (iii) delegate any service requiring professional competence of a licensee or registrant to anyone not licensed or registered for the performance of that service; (iv) provide services to a client if the services cannot be provided with reasonable skill or safety to the client; (v) provide any services which create an unreasonable risk that the client may be mentally or physically harmed; (vi) engage in sexual contact, including intercourse, kissing or fondling, with a client or an assistant, intern or student supervised by the licensee or registrant; and (vii) use alcohol or drugs when the use adversely affects or could adversely affect the licensee's or registrant's provision of professional services. (2) when making statements to clients and to the public shall provide accurate information about the nature and management of communicative disorders and about the profession and the services rendered by the licensee or registrant; (A) A licensee or registrant shall not: (i) misrepresent his or her training or competence; (ii) present false, misleading, deceptive, or not readily verifiable, information in any advertisement, announcement or presentation relating to the services of the licensee or registrant or any person supervised or employed by the licensee or registrant. Advertising includes, but is not limited to, any announcement of services, letterhead, business cards, commercial products, billing statements. False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes advertising that: (I) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading; (II) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure; (III) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated; (IV) contains a testimonial; (V) causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional; (VI) advertises or represents that health care insurance deductibles or co- payments may be waived or are not applicable to health care services to be provided if the deductibles or co-payments are required; (VII) advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or co-payments are required; (VIII) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or (IX) advertises or represents in the use of a professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional; and (iii) use professional or commercial affiliations in any way that would mislead clients or the public; and (iv) present false, misleading, or deceptive information in connection with an application by the licensee or registrant for employment to provide speech- language pathology or audiology services. (B) A licensee or registrant shall: (i) bill a client or a third party only for the services actually rendered in the manner agreed to by the licensee or registrant and the client or the client's authorized representative. (I) On the written request of a client, a client's guardian, or a client's parent, if the client is a minor, a licensee or registrant shall provide, in plain language, a written explanation of the charges for speech-language pathology and/or audiology 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. (II) A licensee or registrant may not persistently or flagrantly overcharge or overtreat a client; and (ii) cooperate with the board by furnishing required documents or papers and by responding to a request for information from or a subpoena issued by the board or the board's authorized representative. (3) shall maintain objectivity in all matters concerning the welfare of clients; (A) A licensee or registrant shall not: (i) participate in activities that constitute a conflict of professional interest. Activities that constitute a conflict of interest may include the following: (I) the exclusive recommendation of a product which the individual owns or has produced; and (II) lack of accuracy in the performance description of a product a licensee has developed; or (III) the restriction of freedom of choice for sources of services or products. (ii) use his or her professional relationship with a client, intern, assistant, or student to promote for personal gain or profit any item, procedure, or service unless the licensee or registrant has disclosed to the client, intern, assistant, or student the nature of the licensee's or registrant's personal gain or profit; and (B) A licensee or registrant shall terminate a professional relationship when it is reasonably clear that the client is not benefiting from the services being provided; (4) shall supervise an intern or assistant in accordance with this chapter; (5) shall inform the board of violations of this code of ethics. A licensee or registrant: (A) shall comply with any order relating to the licensee or registrant which is issued by the board; (B) shall not aid or abet the practice of an unlicensed person when that person is required to have a license or registration under the Act; (C) having cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect by any person shall report in accordance with the Family Code, sec.34.12; and (D) shall not interfere with a board investigation or disciplinary proceeding by willful misrepresentation of facts to the board or its authorized representative or by the use of threats or harassment against any person; (6) who supervise assistants, interns, students, or other supportive personnel is responsible for the services to the client that may be performed by these individuals. The supervising professional must ensure that all services provided are in compliance with this chapter; (7) shall not intentionally or knowingly offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash on in kind, to or from any person, firm, association of persons, partnership, or corporation for securing or soliciting patients or patronage for or from any health care professional. The provisions of the Health and Safety Code, s161.091, et seq, relating to the prohibition of illegal remuneration apply to licensees; (8) who provides direct patient care must comply with Health and Safety Code, Chapter 85, Subchapter I, relating to the prevention of the transmission of HIV or Hepatitis B virus by infected health care workers; (9) shall be subject to disciplinary action by the board if the licensee or 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 under the Crime Victims Compensation Act, Texas Civil Statutes, Article 8309-1; and (10) shall make a reasonable attempt to notify each client of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board by providing notification: (A) on a sign prominently displayed in the primary place of business of each licensee; and (B) on a written document such as a written contract, a bill for service, or office information brochure provided by a licensee or registrant to a client or third party. (b) In addition, an audiologist or intern in audiology registered to fit and dispense hearing aid/hearing instrument under this Act must: (1) adhere to federal Food and Drug Administration regulations in accordance with 21 Code of Federal Regulations sec.801.420 and sec.801.421; (2) provide clients with a written contract for services in this state that contains the name, mailing address, and telephone number of the board; (3) follow the guidelines as set out in sec.741.87 of this title (relating to Requirement for Registration of Audiologists and Interns in Audiology who Fit and Dispense Hearing Aids); (4) meet the most recent American National Standards Institute "ears covered" octave band criteria for permissible ambient noise levels during audiometric testing; and (5) receive a written statement before selling a hearing aid/hearing instrument that is signed by a licensed physician who specializes in diseases of the ear and states that the client's hearing loss has been medically evaluated during the preceding six-month period and that the client may be a candidate for a hearing aid/hearing instrument. If the client is age 18 or over, the registered audiologist or intern in audiology may inform the client that the medical evaluation requirement may be waived as long as the registered audiologist or intern in audiology: (A) informs the client that the exercise of the waiver is not in the client's best health interest; (B) does not encourage the client to waive the medical evaluation; and (C) gives the client an opportunity to sign this statement: "I have been advised by (the name of the individual dispensing the hearing aid/hearing instrument) that the Food and Drug Administration has determined that my best health interest would be served if I had a medical evaluation by a licensed physician (preferably a physician who specializes in diseases of the ear) before purchasing a hearing aid/hearing instrument. I do not wish a medical evaluation before purchasing a hearing aid/hearing instrument". This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331532 Gene R. Powers Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter E. Requirements for Licensure and Registration of Speech-Language Pathologists 22 TAC sec.sec.741.61-741.66 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.61. Requirements for a Speech-Language Pathology License. The purpose of this section is to delineate the academic, practicum, supervised professional experience and examination required for licensure of a speech-language pathologist. (1) An applicant must possess a minimum of a master's degree with a major in not less than one of the areas of communicative sciences or disorders from a program accredited by the American-Speech-Language-Hearing Association in an accredited or approved college or university. (2) An applicant must have earned at least 75 semester credit hours that reflect a well integrated program of study. (3) At least 27 of the 75 semester credit hours must be in basic science coursework which includes at least: (A) six semester credit hours in the biological/physical sciences and mathematics; (B) six semester credit hours in the behavioral and/or social sciences; and (C) 15 semester credit hours in the basic human communication processes, to include coursework in each of the following three areas of speech, language, and hearing: (i) the anatomic and physiologic bases; (ii) the physical and psychophysical bases; and (iii) the linguistic and psycholinguistic aspects. (4) At least 36 of the 75 semester credit hours must be in professional course work acceptable toward a graduate degree with at least 30 semester credit hours awarded graduate credit. (5) At least 24 semester credit hours acceptable toward a graduate degree must be earned in the area of speech-language pathology as follows: (A) six graduate semester credit hours in speech disorders; (B) six graduate semester credit hours in language disorders; and (C) other graduate semester credit hours in courses that include information on the understanding, evaluation, treatment, and prevention of communication disorders across all age spans in a variety of disorders. (6) Six semester credit hours must be earned in the area of audiology as follows: (A) three semester credit hours in hearing disorders and hearing evaluation; and (B) three semester credit hours in habilitative or rehabilitative procedures with individuals who have hearing impairment. (7) A maximum of six academic semester credit hours associated with clinical practicum 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 paragraphs (5) and (6) of this section. (8) An applicant must have completed a minimum of 375 clock hours of clinical experience with individuals who present a variety of communication disorders under supervision of an individual who holds a valid Texas license in speech- language pathology and who possesses a minimum of a master's degree with a major in not less that one of the areas of communicative sciences or disorders, completed the equivalent of 36 weeks of full-time supervised professional experience, and passed the national examination as required by sec.741.122 of this title (relating to Administration). This experience must have been obtained within an educational institution or in one of its cooperating programs. Clinical experience may be referred to as clinical practicum. (A) At least 25 clock hours of clinical observation must be completed prior to beginning the clinical practicum that concerns the evaluation and treatment of children and adults with disorders of speech, language, or hearing. (B) At least 350 clock hours of supervised clinical practicum that concern the evaluation and treatment of children and adults with disorders of speech, language, and hearing must be completed as follows: (i) no more than 25 of the clock hours may be obtained from participation in staffing in which evaluation, treatment, and/or recommendations are discussed or formulated, with or without the client present; (ii) at least 250 clock hours must be completed in speech-language pathology with at least 50 clock hours in each of three types of settings and completed in each of the following: (I) evaluation of speech disorders in children; (II) evaluation of speech disorders in adults; (III) evaluation of language disorders in children; (IV) evaluation of language disorders in adults; (V) treatment of speech disorders in children; (VI) treatment of speech disorders in adults; (V) treatment of language disorders in children; and (VIII) treatment of language disorders in adults. (C) At least 35 of the 350 clock hours must be in audiology as follows: (i) at least 15 involved in the evaluation or screening of individuals with hearing disorders; and (ii) at least 15 involved in habilitation/rehabilitation of individuals who have hearing impairment. (D) While pursuing this course of study, the applicant shall be designated as a trainee in speech-language pathology. (E) Supervised clinical practicum earned at foreign universities shall be acceptable if the applicant follows procedures outlined in paragraph (9)(G) of this section. (9) Original transcripts shall be required to process an application for licensure. Certified copies of transcripts shall be considered originals. Transcripts shall be reviewed as follows. (A) Graduate degrees must have been completed at a college or university which has a program accredited by the American Speech-Language-Hearing Association and holds accreditation or candidacy status from a recognized regional accrediting agency, such as the Southern Association of Colleges and Universities. (B) The transcript must verify which courses received graduate credit. (C) Semester credit hours that are acceptable may include upper division hours. (D) The board shall only accept course work completed with a grade of at least a "C" or for credit. (E) The board shall consider a quarter hour of academic credit as two-thirds of a semester credit hour. (F) Academic courses, the titles of which are not self-explanatory, must be substantiated through course descriptions in official school catalogs or bulletins or by other official means. (G) Degrees and/or course work received at foreign universities shall be acceptable only if such course work and clinical practicum hours can be verified as meeting the requirements of this paragraph. The applicant must bear all expenses incurred during the procedure. (10) An applicant must have obtained the equivalent of 36 weeks of full-time, or its part-time equivalent, of supervised professional experience in which bona fide clinical work has been accomplished in speech-language pathology as required by sec.741.62 of this title (relating to Requirements for an Intern in Speech-Language Pathology License). (A) While pursuing this professional employment experience, the applicant shall be designated as an intern in speech-language pathology. (B) Prior to the beginning of an intern's required, supervised professional experience, the intern must be licensed as required by sec.741.62 of this title. (C) An applicant who completed an internship in another state must meet the requirements of sec.741.62 of this title except the supervisor must have been licensed in that other state, rather than Texas. However, if the other state did not require licensing, the supervisor must have held the American Speech- Language-Hearing Association certificate of clinical competence in speech- language pathology. (11) An applicant must pass the examination as referenced by sec.741.122 of this title (relating to Administration) before a license will be issued. sec.741.62. Requirements for an Intern in Speech Language Pathology License. (a) Effective January 1, 1994, an applicant who has completed the requirements of sec.741.61(1)-(9) of this title (relating to Requirements for a Speech- Language Pathology License) must be licensed as an intern in order to commence the supervised professional experience. (b) Effective January 1, 1994, an applicant who has successfully completed all academic and clinical requirements of sec.741.61(1)-(9) of this title but who has not had the degree officially conferred may be licensed as an intern in order to commerce the supervised professional experience but must submit an original or certified copy of a letter from the program director verifying that the applicant has met all academic coursework, clinical practicum requirements and completed a thesis or passed a comprehensive examination, if required, and is awaiting the date of next graduation for the degree to be conferred. (c) The intern must complete 36 weeks of full-time, or its part-time equivalent, of supervised professional experience in which bona fide clinical work has been accomplished in speech-language pathology. Full-time employment is defined as a minimum of 30 hours per week in direct patient/client contact, consultations, record keeping, and administrative duties relevant to a bona fide program of clinical work. Part-time equivalent is defined as follows: (1) 0-15 hours per week-no credit will be given; (2) 15-19 hours per week for over 72 weeks; (3) 20-24 hours per week for over 60 weeks; or (4) 25-29 hours per week for over 48 weeks; (d) If the supervisor of the intern and a committee of the board determines that the intern needs additional supervision in a specific area, the internship may be extended. (e) This internship must begin within four years after the academic and clinical experience requirements as required by sec.741.61 of this title have been met and must be completed within a maximum period of 36 consecutive months once initiated. Applicants who do not meet these times frames must request, in writing, and may receive board approval for an extension. A committee of the board will decide on a case-by-case basis and may require that the applicant complete additional coursework, earn continuing professional education hours or pass the examination referenced in sec.741.122 of this title (relating to Administration). (f) This work must be done under the supervision of an individual who holds a valid Texas license in speech-language pathology and who possesses a minimum of a master's degree with a major in not less than one of the areas of communicative sciences or disorders, completed the equivalent of 36 weeks of full-time supervised professional experience, and passed the national examination as required by sec.741.122 of this title. (g) Original or certified copy of the transcript(s) are required and will be evaluated under sec.741.61(9) of this title. (h) An applicant whose master's degree is received at a college or university approved by the American Speech-Language-Hearing Association Educational Standards Board will receive automatic approval of the course work and clinical experience if the program director verifies that all requirements as outlined in sec.741.61(1)-(9) of this title have been met and review of the transcript shows that the applicant has successfully completed at least 24 semester credit hours acceptable toward a graduate degree in the area of speech-language pathology with six hours in audiology. (i) The internship experience should be divided into three segments with no fewer than 36 clock hours of supervisory activities to include: (1) 18 on-site observations of direct client contact at the worksite in which the intern provides screening, evaluation, assessment, habilitation, and rehabilitation; (2) 18 other monitoring activities which may include correspondence, review of video tapes, evaluation of written reports, phone conferences with the intern, evaluations by professional colleagues; and (3) other options to complete this supervisory process must be requested in writing and receive approval from a committee of the board before commencing the activity. (j) The internship should involve primarily clinical activities such as assessment, diagnosis, evaluation, screening, treatment, report writing, family/client consultation, and/or counseling related to the management process of individuals who exhibit communication disabilities. (k) The supervisor periodically shall conduct a formal evaluation of the applicant's progress in the development of professional skills. (l) An original or certified copy of the intern plan or an individual work plan signed by the supervisor and applicant must be submitted. The board office must be notified in writing of any change in the supervisory arrangement. If a major change in the plan occur, a revised plan must be submitted immediately. (m) A supervisor of an intern is responsible for the services to the client that may be performed by the intern. The supervising professional must ensure that all services provided are in compliance with this chapter. (n) A person who possesses a master's degree with a major in audiology and is pursing an internship in speech-language pathology may apply for an intern license in speech-language pathology if the board has an original transcript showing completion of a master's degree with a major in audiology on file and a letter from the department head of the college or university stating that the individual has completed enough hours to establish a graduate level major in speech-language pathology and would meet the academic and clinical requirements for a license as an audiologist. (o) An intern license is issued and expires as described in sec.741.142 of this title (relating to Issuance of License, and Registration) and may be renewed as described in sec.741.162 of this title (relating to General). sec.741.63. Special Conditions for Licensure of Speech-Language Pathologists. The board may waive the educational, professional and examination requirements and grant licensure to an applicant who holds the certificate of clinical competence of the American Speech-Language-Hearing Association in speech- language pathology. An original or certified copy of transcript(s) shall be required. sec.741.64. Requirements for a Provisional Speech-Language Pathology License. (a) The board may grant a provisional license to a person if the following requirements are met: (1) possesses a license in good standing as a speech-language pathologists in another state, the District of Columbia, or a territory of the United States that has licensing requirements that are substantially equivalent to the requirements of the Act; (2) submits evidence of having passed the Educational Testing Service examination as reference in sec.741.122 of this title (relating to Administration) or a state validated examination required for licensure in speech-language pathology; and (3) submits a form signed by a person licensed as a speech-language pathologist under this Act who agrees to sponsor the applicant. (b) The board may excuse an applicant for a provisional license from the requirement of subsection (a)(3) of this section if he or she submits documentation to show that meeting this requirements would constitute a hardship. (c) Once issued, a provisional license is valid until the date the board approves or denies the provisional license holder's application for a license. (d) The board shall issue a speech-language pathology license to the provisional license holder if he or she submits the following: (1) an original or certified copy of transcript(s) and other documentation showing that the provisional license holder met all requirements referenced in sec.741.61 of this title (relating to Requirements for a Speech-Language Pathology License) and (2) an original or certified copy of a passing score from the Educational Testing Service as referenced in sec.741.122 of this title. (e) The board must complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. sec.741.65. Requirements for an Assistant in Speech-Language Pathology License. (a) An assistant is an individual who provides services and support of clinical programs of speech-language pathology and is supervised by a licensed speech-language pathologist. The following are established as minimum requirements for licensure as an assistant in speech-language pathology: (1) a baccalaureate degree with a major in not less than one of the areas of communication sciences or disorders; (2) no fewer than 24 semester hours in speech-language pathology and/or audiology, at least nine of which must be in the area for which license is being sought; (3) no fewer than 25 hours of clinical observation and 25 hours of clinical practicum completed under supervision of an individual licensed by this board; (4) the filing of original or certified copy of transcript(s) which shall be reviewed as in sec.741.61(9) of this title (relating to Requirements for a Speech-Language Pathology License); and (5) a supervisory responsibility statement submitted upon application and each subsequent renewal or with a change of supervisor. (b) Although the supervisor may delegate specific clinical tasks to an assistant, the responsibility to the client for all services provided cannot be delegated. The supervisor must ensure that all services provided are in compliance with this chapter. The assistant may execute specific components of the clinical speech, language, and/or hearing program if the supervisor determines that the assistant has received the training and has the skill to accomplish that task, and the supervisor provides sufficient supervision to ensure appropriate completion of the task assigned to the assistant. The supervisor must keep job descriptions and performance records; these must be current and must be made available to the board within 30 days of the date of the board's request for such records. (1) Examples of duties which assistants may be assigned include the following: (A) conducting or participating in speech, language, and/or hearing screening; (B) conducting valuative or management programs which may include the utilization of published materials for which the associate has received training; (C) maintaining clinical records of client performance; (D) preparing clinical materials; and (E) participating with the professional in research projects, staff development, public relations programs, or similar activities as designated and supervised by the professional. (2) The assistant should not engage in any of the following activities: (A) interpreting observations or data into diagnostic statements, clinical management strategies, or procedures; (B) determining case selection; (C) presenting written reports of client information to those other than the supervisor without the signature of the supervisor; (D) referring a client to other professionals or other agencies; (E) using any title which connotes the competency of a licensed professional, as defined in the Act, sec.2; or (F) practicing as an assistant in speech-language pathology without a valid supervisory responsibility statement on file in the board office. (3) Any references to the licensee's title shall state clearly that the license status is that of an assistant. (4) An assistant may not provide speech-language pathology services without an approved supervisor. (5) Direct-care staff in a residential care or treatment facility who use only the concepts of daily living in their job performance are not required to be licensed as assistants. (c) Therapy/intervention is: (1) the systematic, individualized process of minimizing communication disorders, involving the dynamic interaction between the fully licensed speech- language pathologist and client; (2) designed and executed on the basis of ongoing evaluation of the client's communication needs, skills, and resources; and (3) designed and executed only by a fully licensed speech-language pathologist; certain routine and perfunctory aspects of the intervention process, such as carryover activities, may be delegated to a licensed assistant. (d) Carryover is: (1) the therapeutically designed transfer of a newly acquired communication ability to contexts and situations outside of the therapy situation; and (2) designed by a fully licensed speech-language pathologist. (e) The assistant may conduct carryover activities, language and auditory stimulation, and other activities related to intervention and record keeping as described in these sections and as deemed appropriate by the supervising fully licensed speech-language pathologist. (f) The assistant may oversee activities of communication helpers in consultation with, and direction of, fully licensed speech-language pathologists. (g) Direct supervision of speech-language pathology duties assigned to the assistant shall be provided by a licensed speech-language pathologist. (1) Following on-the-job training, the assistant's initial client contact shall be directly supervised. Thereafter, the minimum supervision requirements for an assistant by the supervisor shall be no less than two hours a week, at least half of which is direct on-site supervision at the location where the assistant is employed. If an alternative arrangement is needed, the supervisor must submit a proposed plan for review by the board or the appropriate committee to determine if the plan is acceptable. Indirect methods of supervision such as audio and/or video tape recording, telephone communication, numerical data, or other means of reporting may be utilized. (2) Supervisory records shall be maintained by the supervisor which verify regularly scheduled monitoring, assessment, and evaluation of assistant and client performance. Such documentation may be requested by the board. (h) An assistant will be required to meet continuing education requirements for license renewal as stated in sec.741.163 of this title (Relating to Requirements for Continuing Professional Education). (i) An assistant may renew a license even though the assistant does not have a supervisor. However, the assistant may not practice until a supervisor is obtained and a new supervisory responsibility statement is approved by the board office. To continue to practice without supervision may result in revocation of the assistant's license. (j) The licensed supervisor and/or assistant shall ensure that the requirements and duties of an individual such as a communication helper are followed. A communication helper: (1) is accountable to a fully licensed professional who is ultimately responsible for the communication helper; (2) may work under direction of an assistant if the assistant is supervised as required by subsection (g) of this section; (3) may not singularly engage in direct intervention or assessment activities; and (4) may participate in activities as described and approved by a fully licensed professional such as: (A) setting up room and equipment for evaluation/ intervention/conference; (B) clearing room and storing equipment after evaluation/ intervention/conference; (C) preparing materials for use by an associate or speech-language pathologist in intervention, evaluation, carryover, etc.; (D) transporting clients to and from clinical sessions; (E) assisting with field trips and other communication stimulation situations; (F) acting as surrogate parent; (G) participating in daily living activities and care; and (H) applying language stimulation strategies in daily living activities as directed by assistant and approved by fully licensed speech-language pathologist. sec.741.66. Requirements for a Temporary Certificate of Registration in Speech-Language Pathology. (a) A temporary certificate of registration in speech-language pathology may be applied for by an individual who submits original or certified copy of documentation that all requirements referenced in sec.741.61 (1)-(10) of this title (relating to Requirements for a Speech- Language Pathology License) have been met but who has not previously applied to the board to take the examination for licensure as required by sec.741.122 of this title (relating to Administration). (b) If issued, this certificate entitles an applicant approved for examination to practice speech-language pathology for a period of time ending eight weeks after the offering of the next examination after the date of issue of the certificate. (c) A temporary certificate of registration is not renewable. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331531 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter D. Academic Requirements for Examination and Licensure for Speech- Language Pathologists 22 TAC sec.sec.741.61-741.64 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.61. Purpose. sec.741.62. Special Conditions for Licensure of Speech-Language Pathologists. sec.741.63. Special Conditions for Licensure of Speech-Language Pathologists. sec.741.64. Requirements for a Licensed Associate in Speech-Language Pathology. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331545 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter E. Academic Requirements for Examination and Licensure for Audiologists 22 TAC sec.sec.741.81-741.84 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.81. Purpose. sec.741.82. Time-Limited Special Conditions for Licensure of Audiologists. sec.741.83. Special Conditions for Licensure of Audiologists. sec.741.84. Requirements for a Licensed Associate in Audiology. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331544 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter F. Requirements for Licensure and Registration of Audiologists 22 TAC sec.sec.741.81-741.87 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.81. Requirements for an Audiology License. The purpose of this subchapter is to delineate the academic, practicum, supervised professional experience and examination required for licensure of an audiologist. (1) An applicant must possess a minimum of a master's degree with a major in not less than one of the areas of communicative sciences or disorders from a program accredited by the American-Speech-Language-Hearing Association in an accredited or approved college or university. (2) An applicant must have earned at least 75 semester credit hours that reflect a well integrated program of study. (3) At least 27 of the 75 semester credit hours must be in basic science coursework which includes at least: (A) six semester credit hours in the biological/physical sciences and mathematics; (B) six semester credit hours in the behavioral and/or social sciences; and (C) 15 semester credit hours in the basic human communication processes, to include coursework in each of the following three areas of speech, language, and hearing: (i) the anatomic and physiologic bases; (ii) the physical and psychophysical bases; and (iii) the linguistic and psycholinguistic aspects. (4) At least 36 of the 75 semester credit hours must be in professional course work acceptable toward a graduate degree with at least 30 semester credit hours awarded graduate credit. (5) At least 24 semester credit hours acceptable toward a graduate degree must be earned in the area of audiology as follows: (A) six graduate semester credit hours in hearing disorders and hearing evaluation; (B) six graduate semester credit hours in habilitative/rehabilitative procedures with individuals who have hearing impairment; and (C) other graduate semester credit hours in courses that include information on hearing disorders, hearing evaluations, habilitative/rehabilitive procedures, and preventive methods, including the study of auditory disorders and habilitative/rehabilitative procedures across the life span. (6) Six semester credit hours must be earned in the area of speech-language pathology as follows: (A) three semester credit hours in speech disorders; and (B) three semester credit hours in language disorders. (7) A maximum of six academic semester credit hours associated with clinical practicum 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 paragraphs (5) and (6) of this section. (8) An applicant must have completed a minimum of 375 clock hours of clinical experience with individuals who present a variety of communication disorders under supervision of an individual who holds a valid Texas license in audiology and who possesses a minimum of a master's degree with a major in not less than one of the areas of communicative sciences or disorders, completed the equivalent of 36 weeks of full-time supervised professional experience and passed the national examination as required by sec.741.122 of this title (relating to Administration). This experience must have been obtained within an educational institution or in one of its cooperating programs. Clinical experience may be referred to as clinical practicum. (A) At least 25 clock hours of clinical observation must be completed prior to beginning the clinical practicum that concerns the evaluation and treatment of children and adults with disorders of speech, language, or hearing. (B) At least 350 clock hours of supervised clinical practicum that concern the evaluation and treatment of children and adults with disorders of speech, language, and hearing must be completed as follows: (i) no more than 25 of the clock hours may be obtained from participation in staffing in which evaluation, treatment, and/or recommendations are discussed or formulated, with or without the client present; (ii) at least 250 clock hours must be completed in audiology as follows: (I) at least 40 clock hours in evaluation of hearing in children; (II) at least 40 clock hours in evaluation of hearing in adults; (III) at least 80 clock hours in selection and use of amplification and assistive devices for children and adults; (IV) at least 20 clock hours in treatment of hearing disorders in children and adults; and (iii) At least 35 of the 350 clock hours must be in speech-language pathology as follows: (I) at least 15 clock hours involved in the evaluation or screening of individuals with speech and language disorders unrelated to hearing impairment and (II) at least 15 clock hours involved in the treatment of individuals with speech and language disorders unrelated to hearing impairment. (C) While pursuing this course of study, the applicant shall be designated as a trainee in audiology. (D) Supervised clinical practicum earned at foreign universities shall be acceptable if the applicant follows procedures outlined in paragraph (9)(G) of this section. (9) Original transcripts shall be required to process an application for licensure. Certified copies of transcripts shall be considered originals. Transcripts shall be reviewed as follows. (A) Graduate degrees must have been completed at a college or university which has a program accredited by the American Speech-Language-Hearing Association and holds accreditation or candidacy status from a recognized regional accrediting agency, such as the Southern Association of Colleges and Universities. (B) The transcript must verify which courses received graduate credit. (C) Semester credit hours that are acceptable may include upper division hours. (D) The board shall only accept course work completed with a grade of at least a "C" or for credit. (E) The board shall consider a quarter hour of academic credit as two-thirds of a semester credit hour. (F) Academic courses, the titles of which are not self-explanatory, must be substantiated through course descriptions in official school catalogs or bulletins or by other official means. (G) Degrees and/or course work received at foreign universities shall be acceptable only if such course work and clinical practicum hours can be verified as meeting the requirements of this paragraph. The applicant must bear all expenses incurred during this procedure. (10) An applicant must have obtained the equivalent of 36 weeks of full-time, or its part-time equivalent, of supervised professional experience in which bona fide clinical work has been accomplished in audiology as required by sec.741.82 of this title (relating to Requirements for an Intern in Audiology License). (A) While pursuing this professional employment experience, the applicant shall be designated as an intern in audiology. (B) Prior to the beginning of an intern's required, supervised professional experience, the intern must be licensed as required by sec.741.82 of this title. (C) An applicant who completed an internship in another state must meet the requirements of sec.741.82 of this title, except the supervisor must have been licensed in that other state, rather than Texas. However, if the other state did not require licensing, the supervisor must have held the American Speech- Language-Hearing Association certificate of clinical competence in audiology. (11) An applicant must pass the examination as referenced by sec.741.122 of this title before a license will be issued. sec.741.82. Requirements for an Intern in Audiology License. (a) Effective January 1, 1994, an applicant who has completed the requirements of sec.741.81(1)-(9) of this title (relating to Requirements for an Audiology License) must be licensed as an intern in order to commence the supervised professional experience. (b) Effective January 1, 1994, an applicant who has successfully completed all academic and clinical requirements of sec.741.81(1)-(9) of this title but who has not had the degree officially conferred may be licensed as an intern in order to commence the supervised professional experience but must submit an original or certified copy of a letter from the program director verifying that the applicant has met all academic coursework, clinical practicum requirements and completed a thesis or passed a comprehensive examination, if required, and is awaiting the date of next graduation for the degree to be conferred. (c) The intern must complete 36 weeks of full-time, or its part-time equivalent, of supervised professional experience in which bona fide clinical work has been accomplished in audiology. Full-time employment is defined as a minimum of 30 hours per week in direct patient/client contact, consultations, record keeping and administrative duties relevant to a bona fide program of clinical work. Part time equivalent is defined as follows: (1) 0-15 hours per week-no credit will be given; (2) 15-19 hours per week for over 72 weeks; (3) 20-24 hours per week for over 60 weeks; or (4) 25-29 hours per week for over 48 weeks; (d) If the supervisor of the intern and a committee of the board determine that the intern needs additional supervision in a specific area, the internship may be extended. (e) This internship must begin within four years after the academic and clinical experience requirements as required by sec.741.81 of this title have been met and must be completed within a maximum period of 36 consecutive months once initiated. Applicants who do not meet these times frames must request, in writing, and may receive board approval for an extension. A committee of the board will decide on a case-by-case basis and may require that the applicant complete additional coursework, earn continuing professional education hours or pass the examination referenced in sec.741.122 of this title (relating to Administration). (f) This work must be done under supervision of an individual who holds a valid Texas license in audiology and who possesses a minimum of a master's degree with a major in not less that one of the areas of communicative sciences or disorders, completed the equivalent of 36 weeks of full-time supervised professional experience and passed the national examination as required by sec.741.122 of this title. This experience must have been obtained within an educational institution, or in one of its cooperating programs. Clinical experience may be referred to as clinical practicum. (g) An original or certified copy of the transcript(s) is required and will be evaluated under sec.741.81(9) of this title. (h) An applicant whose master's degree is received at a college or university approved by the American Speech-Language-Hearing Association Educational Standards Board will receive automatic approval of the course work and clinical experience the program director verifies that all requirements as outlined in sec.741.81(1)-(9) of this title have been met and review of the transcript shows that the applicant has successfully completed at least 24 semester credit hours acceptable toward a graduate degree int he area od speech-language pathology with six hours in audiology. (i) The internship experience should be divided into three segments with no fewer than 36 clock hours of supervisory activities to include: (1) 18 on-site observations of direct client contact at the worksite in which the intern provides screening, evaluation, assessment, habilitation, and rehabilitation; (2) 18 other monitoring activities which may include correspondence, review of video tapes, evaluation of written reports, phone conferences with the intern, evaluations by professional colleagues; and (3) other options to complete this supervisory process must be requested in writing and receive approval from a committee of the board before commencing the activity. (j) The internship should involve primarily clinical activities such as assessment, diagnosis, evaluation, screening, treatment, report writing, family/client consultation, and/or counseling related to the management process of individuals who exhibit communication disabilities. (k) The supervisor periodically shall conduct a formal evaluation of the applicant's progress in the development of professional skills. (l) An original or certified copy of the intern plan or an individual work plan signed by the supervisor and applicant must be submitted. The board office must be notified in writing of any change in the supervisory arrangement. If a major change in the plan occur, a revised plan must be submitted immediately. (m) A supervisor of an intern is responsible for the services to the client that may be performed by the intern. The supervising professional must ensure that all services provided are in compliance with this chapter. (n) A person who possesses a master's degree with a major in speech-language pathology and is pursing an internship in audiology may apply for an intern license in audiology if the board has an original transcript showing completion of a master's degree with a major in speech-language pathology on file and a letter from the department head of the college or university stating that the individual has completed enough hours to establish a graduate level major in audiology and would meet the academic and clinical requirements for a license as an audiologist. (o) An intern license is issued and expires as described in sec.741.142 of this title (relating to Issuance of License and Registration) and may be renewed as described in sec.741.162 of this title (relating to General). sec.741.83. Special Conditions for Licensure of Audiologists. The board may waive the educational, professional and examination requirements and grant licensure to an applicant who holds the certificate of clinical competence of the American Speech-Language-Hearing Association in audiology. An original or certified copy of transcript(s) shall be required. sec.741.84. Requirements for a Provisional Audiology License. (a) The board may grant a provisional license to a person if the following requirements are met: (1) possesses a license in good standing as an audiologist in another state, the District of Columbia, or a territory of the United States that has licensing requirements that are substantially equivalent to the requirements of the Act; (2) submits evidence of having passed the Educational Testing Service examination as reference in sec.741.123 of this title (relating to Procedures) or a state validated examination required for licensure in audiology; and (3) submits a form signed by a person licensed as an audiologist under this Act who agrees to sponsor the applicant. (b) The board may excuse an applicant for a provisional license from the requirement of subsection (a)(3) of this section if he or she submits documentation to show that meeting this requirements would constitute a hardship. (c) Once issued, a provisional license is valid until the date the board approves or denies the provisional license holder's application for a license. (d) The board shall issue an audiology license to the provisional license holder if he or she submits the following: (1) an original or certified copy of transcript(s) and other documentation showing that the provisional license holder met all requirements referenced in sec.741. 81 of this title (relating to Requirements for an Audiology License); and (2) an original or certified copy of a passing score from the Educational Testing Service as referenced in sec.741.122 of this title (relating to Administration). (e) The board must complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. sec.741.85. Requirements for an Assistant in Audiology License. (a) An assistant is an individual who provides services and support of clinical programs of audiology and is supervised by a licensed audiologist. The following are established as minimum requirements for licensure as an assistant in audiology: (1) a baccalaureate degree with a major in not less than one of the areas of communication sciences or disorders; (2) no fewer than 24 semester hours in speech-language pathology and/or audiology, at least nine of which must be in the area for which license is being sought; (3) no fewer than 25 hours of clinical observation and 25 hours of clinical practicum completed under supervision of an individual licensed by this board; (4) the filing of an original or certified copy of transcript(s) which shall be reviewed as in sec.741.81(9) of this title (relating to Requirements for an Audiology License); and (5) a supervisory responsibility statement submitted upon application and each subsequent renewal or with a change of supervisor. (b) Although the supervisor may delegate specific clinical tasks to an assistant, the responsibility to the client for all services provided cannot be delegated. The supervisor must ensure that all services provided are in compliance with this chapter. The assistant may execute specific components of the clinical speech, language, and/or hearing program if the supervisor determines that the assistant has received the training and has the skill to accomplish that task, and the supervisor provides sufficient supervision to ensure appropriate completion of the task assigned to the assistant. The supervisor must keep job descriptions and performance records; these must be current and must be made available to the board within 30 days of the date of the board's request for such records. (1) Examples of duties which assistants may be assigned include the following: (A) conducting or participating in speech, language, and/or hearing screening; (B) conducting valuative or management programs which may include the utilization of published materials for which the associate has received training; (C) maintaining clinical records of client performance; (D) preparing clinical materials; and (E) participating with the professional in research projects, staff development, public relations programs, or similar activities as designated and supervised by the professional. (2) The assistant should not engage in any of the following activities: (A) interpreting observations or data into diagnostic statements, clinical management strategies, or procedures; (B) determining case selection; (C) presenting written reports of client information to those other than the supervisor without the signature of the supervisor; (D) referring a client to other professionals or other agencies; (E) using any title which connotes the competency of a licensed professional, as defined in the Act, sec.2; or (F) practicing as an assistant in audiology without a valid supervisory responsibility statement on file in the board office. (3) Any references to the licensee's title shall state clearly that the license status is that of an assistant. (4) An assistant may not provide speech-language pathology services without an approved supervision. (5) Direct-care staff in a residential care or treatment facility who use only the concepts of daily living in their job performance are not required to be licensed as assistants. (c) Therapy/intervention is: (1) the systematic, individualized process of minimizing communication disorders involving the dynamic interaction between the fully licensed audiologist and client; (2) designed and executed on the basis of ongoing evaluation of the client's communication needs, skills, and resources; and (3) designed and executed only by a fully licensed audiologist; certain routine and perfunctory aspects of the intervention process, such as carryover activities, may be delegated to a licensed assistant. (d) Carryover is: (1) the therapeutically designed transfer of a newly acquired communication ability to contexts and situations outside of the therapy situation; and (2) designed by a fully licensed audiologist. (e) The assistant may conduct carryover activities, language and auditory stimulation, and other activities related to intervention and record keeping as described in these sections and as deemed appropriate by the supervising fully licensed audiologist. (f) The assistant may oversee activities of communication helpers in consultation with, and direction of, fully licensed audiologists. (g) Direct supervision of audiologist duties assigned to the assistant shall be provided by a licensed audiologist. (1) Following on-the-job training, the assistant's initial client contact shall be directly supervised. Thereafter, the minimum supervision requirements for an assistant by the supervisor shall be no less than two hours a week, at least half of which is direct on-site supervision at the location where the assistant is employed. If an alternative arrangement is needed, the supervisor must submit a proposed plan for review by the board or the appropriate committee to determine if the plan is acceptable. Indirect methods of supervision such as audio and/or video tape recording, telephone communication, numerical data, or other means of reporting may be utilized. (2) Supervisory records shall be maintained by the supervisor which verify regularly scheduled monitoring, assessment, and evaluation of assistant and client performance. Such documentation may be requested by the board. (h) An assistant will be required to meet continuing education requirements for license renewal as stated in sec.741.163 of this title (relating to Requirements for Continuing Professional Education). (i) An assistant may renew a license even though the assistant does not have a supervisor. However, the assistant may not practice until a supervisor is obtained and a new supervisory responsibility statement is approved by the board office. To continue to practice without supervision may result in revocation of the assistant's license. (j) The licensed supervisor and/or assistants shall ensure that these requirements and duties of an individual such as a communication helper are as follows. (1) A communication helper is accountable to a fully licensed professional who is ultimately responsible for the communication helper. (2) A communication helper may work under direction of an assistant if the assistant is supervised as required by subsection (g) of this section. (3) A communication helper may not singularly engage in direct intervention or assessment activities. (4) A communication helper may participate in activities as described and approved by a fully licensed professional such as: (A) setting up room and equipment for evaluation/ intervention/conference; (B) clearing room and storing equipment after evaluation/ intervention/conference; (C) preparing materials for use by associate or speech-language pathologist in intervention, evaluation, carryover, etc.; (D) transporting clients to and from clinical sessions; (E) assisting with field trips and other communication stimulation situations; (F) acting as surrogate parent; (G) participating in daily living activities and care; and (H) applying language stimulation strategies in daily living activities as directed by assistant and approved by fully licensed speech-language pathologist. sec.741.86. Requirements for a Temporary Certificate of Registration in Audiology. (a) A temporary certificate of registration in audiology may be applied for by an individual who submits original or certified copy of documentation that all requirements referenced in s741.81 (1)-(10) of this title (relating to Requirements for an Audiology License) have been met but who has not previously applied to the board to take the examination for licensure as required by sec.741.122 of this title (relating to Administration). (b) If issued, this certificate entitles an applicant approved for examination to practice audiology for a period of time ending eight weeks after the offering of the next examination after the date of issue of the certificate. (c) A temporary certificate of registration is not renewable. sec.741.87. Requirements for Registration of Audiologists and Interns in Audiology who Fit and Dispense Hearing Aids. (a) A licensed audiologist or an intern in audiology must register his or her intent to fit and dispense hearing aid/hearing instrument, on a form obtained from the board. (b) An audiologist or intern in audiology must renew the registration annually in accordance with sec.741.162(r) of this title (relating to General). (c) An audiologist or intern in audiology must notify the board if he or she no longer wishes to fit and dispense hearing aids. (d) An audiologist or intern in audiology may not fit and dispense hearing aids if: (1) the license has been placed in the inactive status; or (2) the license was not renewed before the end of the 60-day grace period. (e) After the expired or inactive license has been properly renewed, the audiologist or intern in audiology may renew his or her registration to fit and dispense hearing aids. (f) An audiologist or intern in audiology must adhere to sec.741.41 of this title (relating to Code of Ethics). (g) An audiologist or intern in audiology must comply with the following guidelines concerning a 30-day trail period on every hearing aid/hearing instrument purchase. (1) All purchasers shall be informed of a 30-day trial period by written agreement. All charges and fees associated with such trial period shall be stated in this agreement which shall also include the name, address, and telephone number of the State Board of Examiners for Speech-Language Pathology and Audiology. The purchaser shall receive a copy of this agreement. (2) Any purchaser of a hearing aid(s) shall be entitled to a refund of the purchase price advanced by purchaser for the hearing aid(s), less the agreed- upon amount associated with the trial period, upon return of the insturment(s) to the licensee in good working order within the 30-day trial period ending 30 days from the date of delivery. Should the order be canceled by purchaser prior to the delivery of the hearing aid(s), the licensee may retain the agreed-upon charges and fees as specified in the written contract. The purchaser shall receive the refund due no later than the 30th day after the date on which the purchaser cancels the order or returns the hearing aid(s) to the licensee. (h) If audiometric testing is not conducted in a stationary acoustical enclosure, sound level measurements must be conducted at the time of the testing to ensure that ambient noise levels meet permissible standards for testing threshold to 20 dB based on the most recent American National Standards Institute "ears covered" octave band criteria for permissible ambient noise levels during audiometric testing. A dBa equivalent level may be used to determine compliance. (i) An audiologist or intern in audiology must comply with 21 Code of Federal Regulations sec.801.420 and sec.801.421, federal Food and Drug Administration guidelines for fitting and dispensing hearing aids/hearing instruments. This board hereby certifies that the proposal has been reviewed by legal counsel and found to be within the board's authority to adopt. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331530 Gene R. Powers Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter G. Requirements for Dual Licensure as a Speech-Language Pathologist and Audiologist 22 TAC sec.741. 91 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.91. Requirements for Dual License. The purpose of this section is to delineate the academic, practicum, supervised professional experience and examination required for dual licensure of a speech-language pathologist and audiologist. (1) An applicant must possess a minimum of a master's degree with a major in not less than one of the areas of communicative sciences or disorders from a program accredited by the American Speech-Language-Hearing Association in an accredited or approved college or university. (2) An applicant must have earned at least 87 semester credit hours that reflect a well integrated program of study. (3) At least 27 of the 87 semester credit hours must be in basic science coursework which includes at least: (A) six semester credit hours in the biological/physical sciences and mathematics; (B) six semester credit hours in the behavioral and/or social sciences; and (C) 15 semester credit hours in the basic human communication processes, to include at least one course in each of the following three areas of speech, language, and hearing: (i) the anatomic and physiologic bases; (ii) the physical and psychophysical bases; and (iii) the linguistic and psycholinguistic aspects. (4) At least 42 of the 87 semester credit hours must be in professional course work acceptable toward a graduate degree with at least 21 semester credit hours awarded graduate credit in speech-language pathology and at least 21 semester credit hours awarded graduate credit in audiology. (5) At least 30 semester credit hours acceptable toward a graduate degree must be earned in the area of speech-language pathology as follows: (A) at least six graduate semester credit hours in speech disorders; (B) at least six graduate semester credit hours in language disorders; (6) At least 30 semester credit hours acceptable toward a graduate degree must be earned in the area of audiology as follows: (A) at least six graduate semester credit hours in hearing disorders and hearing evaluations; (B) at least six graduate semester credit hours in habilitative/rehabilitative procedures with individuals who have hearing impairment. (7) Academic credit for practicum cannot be used to satisfy the minimum requirements of at least 21 graduate semester credit hours in speech-language pathology and at least 21 graduate semester credit hours in audiology. (8) An applicant must have completed a minimum of 500 graduate credit hours clinical practicum hours with children and adults. This experience must have been obtained within an educational institution, or in one of its cooperating programs. Clinical experience may be referred to as clinical practicum. (A) At least 25 credit hours in evaluation and treatment of children and adults with disorders of speech, language, or hearing must be complete prior to beginning 500 graduate credit hours of direct clinical practicum. (B) Of the 500 minimum graduate credit hours of clinical practicum, at least 250 credit hours must be in speech-language pathology under direction of a master's degreed licensed speech-language pathology and at least 250 credit hours must be in audiology under direction of a master's degreed licensed audiologist. (i) Of the 250 graduate credit hours in speech-language pathology: (I) the applicant must complete at least 20 credit hours in each of the following categories: (-a-) evaluation of speech disorders in adults; (-b-) evaluation of speech disorders in children; (-c-) treatment of speech disorders in adults; (-d-) treatment of speech disorders in children; (-e-) evaluation of language disorders in adults; (-f-) evaluation of language disorders in children; (-g-) treatment of language disorders in adults; (-h-) treatment of language disorders in children; and (II) Up to 20 credit hours in the major professional area may be in related disorders. (ii) Of the 250 graduate credit hours in audiology: (I) the applicant complete at least: (-a-) 40 credit hours in evaluation of hearing in children; (-b-) 40 credit hours in evaluation of hearing in adults; (-c-) 80 credit hours in two categories: selection and use-amplification and assistive devices for children and selection and use-amplification and asistive devices for adults, with a minimum of 10 credit hours in each category; (-d-) 20 hours in treatment of hearing disorders in children and adults; and (II) up to 20 clock hours in the major professional area may be in related disorders. (C) A minimum of 50 clinical practicum hours each must be completed in at least six types of clinical settings; three speech-language pathology settings and three audiology settings. (D) While pursuing this course of study, the applicant shall be designated as a trainee in speech-language pathology. (9) Original transcripts shall be required to process an application for licensure. Certified copies of transcripts shall be considered originals. Transcripts shall be reviewed as follows. (A) Graduate degrees must have been completed at a college or university within the United States of America, which has a program accredited by American Speech-Language-Hearing Association and holds accreditation or candidacy status from a recognized regional accrediting agency, such as the Southern Association of Colleges and Universities. (B) The transcript must verify which courses received graduate credit. (C) Semester credit hours that are acceptable may include upper division hours. (D) The board shall only accept course work completed with a grade of at least a "C" or for credit. (E) The board shall consider a quarter hour of academic credit as two-thirds of a semester credit hour. (F) Academic courses, the titles of which are not self-explanatory, must be substantiated through course descriptions in official school catalogs or bulletins or by the other official means. (G) Degrees and/or course work received at foreign universities shall be acceptable only if such course work and clinical practicum hours can by verified as meeting the requirements of this paragraph. The applicant must bear all expenses incurred during the procedure. (10) An applicant must have obtained the equivalent of 36 weeks of full time or it's part-time equivalent, in each professional area, of supervised professional experience in which bona fide clinical work has been accomplished. (A) While pursuing this professional employment experience, the applicant shall be designated as an intern in speech-language pathology and an intern in audiology. (B) Prior to the beginning of an intern's required, supervised professional experience, the intern must be licensed as required by sec.741.62 of this title (relating to Requirements for an Intern in Speech-Language Pathology License) and sec.741.82 of this title (relating to Requirements for an Intern in Audiology License). (11) An applicant must pass the examinations in speech-language pathology and in audiology as referenced by sec.741.122 of this title (relating to Administration) before a license will be issued. (12) An applicant who holds dual certificate as issue by American Speech- Language-Hearing Association in speech-language pathology and audiology may apply for dual licensure by following procedures in sec.741.103(c) of this title (relating to Required Application Materials). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331529 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter F. Application Procedures 22 TAC sec.sec.741.101-741.103 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.101. Purpose. sec.741.102. General. sec.741.103. Required Application Materials. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331543 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter H. Application Procedures 22 TAC sec.sec.741.101-741.103 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.101. Purpose. The purpose of this subchapter is to set out the application procedures for examination and licensing or registration of individuals referred to in these board sections. sec.741.102. General. (a) An applicant must submit all required information and documentation of credentials on official board forms. All forms and application materials shall be obtained from and returned to: State Board of Examiners for Speech-Language Pathology and Audiology 1100 West 49th Street Austin, Texas 78756-3183. (b) The board will not consider an application as officially submitted until the application fee has been paid. The fee must accompany the application form and is not refundable by the board. (c) An individual whose application is not complete will be informed by the executive secretary, or designee, of the additional materials required. The completed application must be returned to the executive secretary no later than 90 days following the date of the request for additional information or the application fee will be forfeited. (d) If an individual allows his or her license to expire and that individual applies for licensure between the date of expiration of his or her license and two years after the date of expiration, the application for licensure shall be an application for renewal under Subchapter K of this chapter (relating to License and Registration Renewal). sec.741.103. Required Application Materials. (a) An applicant applying for a speech-language pathology or audiology license under sec.741.61 of this title (relating to Requirements for a Speech-Language Pathology License) or s741.81 of this title (relating to Requirements for an Audiology License) must submit the following: (1) an application form obtained from the board office which shall contain: (A) specific information regarding personal data, employment and nature of professional practice, social security number, other state licenses and certifications held, disciplinary proceeding, felony and misdemeanor convictions, educational background, practicum experience, supervised experience and references; (B) a statement that the applicant has read the Act and the board rules and agrees to abide by them; (C) a statement that the applicant, if issued a license, shall return the license to the board upon the revocation or suspension of the license; (D) a statement that the applicant understands that fees submitted in the licensure process are nonrefundable; (E) the dated and notarized signature of the applicant; and (F) notification that the applicant may be entitled to a full refund if the application is not processed within the periods of time as required by sec.741.182 of this title (relating to Processing Procedures); (2) the nonrefundable application fee; (3) an original or certified copy of transcript(s) of all relevant course work; (4) an original or certified copy from the director or designee of the college or university training program verifying the applicant completed the clinical experience set out in s741.61(8) of this title or sec.741.81(8) of this title; (5) a supervised post-graduate experience form which must contain the following information: (A) the name of the applicant; (B) the supervisor's name, address, degree, and licensure status; (C) the name and address of the agency or organization where the experience was gained; (D) the inclusive dates of the supervised experience and the total number of hours of supervised post-graduate practice; (E) the number of hours of weekly face-to-face supervision provided for the applicant and the types of supervision used (direct, observation room, video tape, audio tape, review of records, etc.); (F) the applicant's employment status during supervised experience; and (G) the supervisor's signature; (6) an original or certified statement from the Educational Testing Service showing a passing score on the examination described in sec.741.122 of this title (relating to Administration); and (7) three letters of reference supporting the applicant's request for licensure from individuals who are in the profession and can attest to the applicant's skills and professional standards. (b) An applicant applying for an intern in speech-language pathology license under sec.741.62 of this title (relating to Requirements for an Intern in Speech-Language Pathology License) or an intern in audiology license under sec.741.82 of this title (relating to Requirements for an Intern in Audiology License) must submit the following: (1) an application form obtained from the board office which shall contain: (A) specific information regarding personal data, employment and nature of professional practice, social security number, other state licenses and certifications held, disciplinary proceedings, felony and misdemeanor convictions, educational background, practicum experience, supervised experience and references; (B) a statement that the applicant has read the Act and the board rules and agrees to abide by them; (C) a statement that the applicant, if issued a license, shall return the license to the board upon the revocation or suspension of the license; (D) a statement that the applicant understands that fees submitted int he licensure process are nonrefundable; and (E) the dated and notarized signature of the applicant; and (F) notification that the applicant may be entitled to a full refund if the application is not processed within the periods of time as required by sec.741.182 of this title; (2) the nonrefundable application fee; (3) an original or certified copy of transcript(s) of all relevant course work; and (4) an original or certified copy from the director or designee of the college or university training program verifying the applicant completed the clinical experience set out in s741.61(8) of this title or sec.741.81(8) of this title. (c) An applicant who holds the American Speech-Language-Hearing Association certificate of clinical competence applying for licensure under sec.741.63 of this title (relating to Special Conditions for Licensure of Speech-Language Pathologists) or sec.741.83 of this title (relating to Special Conditions for Licensure of Audiologists) must submit the following: (1) an application form obtained from the board office which shall contains: (A) specific information regarding personal data, employment and nature of professional practice, social security number, other state licenses and certifications held, disciplinary proceedings, felony and misdemeanor convictions, educational background, practicum experience, supervised experience and references; (B) a statement that the applicant has read the Act and the board rules and agrees to abide by them; (C) a statement that the applicant, if issued a license, shall return the license to the board upon the revocation or suspension of the license; (D) a statement that the applicant understands that fees submitted in the licensure process are nonrefundable; (E) the dated and notarized signature of the applicant; and (F) notification that the applicant may be entitled to a full refund if the application is not processed within the periods of time as required by sec.741.182 of this title; (2) the nonrefundable application fee; however, an applicant who holds the American Speech-Language-Hearing Association certificates of clinical competence in audiology and in speech-language pathology applying for dual licensure as a speech-language pathologist and audiologist must submit two application fees; (3) an original or certified copy of a letter from the American Speech- Language-Hearing Association stating the applicant holds the certificate of clinical competence in the area in which the applicant has applied for license; however, an applicant who holds the American Speech-Language-Hearing Association certificate of clinical competence in audiology and in speech-language pathology applying for dual licensure as a speech-language pathologist and audiologist must submit an original or certified copy of a letter from the American Speech- Language-Hearing Association stating the applicant currently holds the certificate of clinical competence in speech-language pathology and in audiology; and (4) an original or certified copy of transcript(s) of all relevant course work. (d) An applicant applying for a speech-language pathology or audiology provisional license under sec.741.64 of this title (relating to Requirements for a Provisional Speech-Language Pathology License) or sec.741.84 of this title (relating to Requirements for a Provisional Audiology License) must submit the following: (1) an application form obtained from the board office which shall contain: (A) specific information regarding personal data, employment and nature of professional practice, social security number, other state licenses and certifications held, disciplinary proceedings, felony and misdemeanor convictions, educational background, practicum experience, supervised experience and references; (B) a statement that the applicant has read the Act and the board rules and agrees to abide by them; (C) a statement that the applicant, if issued a license, shall return the license to the board upon the revocation or suspension of the license; (D) a statement that the applicant understands that fees submitted in the licensure process are nonrefundable; (E) the dated and notarized signature of the applicant; and (F) notification that the applicant may be entitled to a full refund if the application is not processed within the periods of time as required by sec.741.182 of this title; (2) the nonrefundable application fee; (3) a copy of the licensing law and rules from the state of the applicant's previous residence; (4) a copy of the applicant's license from another state; (5) an original form completed by that state's licensing board with board seal affixed which contains: (A) name and social security number of the applicant; (B) area of licensure; (C) date license issued; (D) date license expired; (E) what licensure qualifications were met by the applicant; (F) whether the applicant passed an examination required for state licensure and the name of the examination; (G) whether the license had ever been revoked, cancelled, or suspended; and (H) whether disciplinary proceedings were initiated; (6) an original or certified statement from the Education Testing Service showing a passing score on the examination described in sec.741.122 of this title (relating to Administration) if no examination is listed under paragraph (5)(F) of this subsection; (7) a form completed by the individual licensed by this board accepting sponsorship unless the board excused the applicant from this requirement because it would constitute a hardship to the applicant; and (8) once documentation required in this paragraph has been received and a provisional license issued, the provisional license holder must submit additional documentation as required by sec.741.64(d) of this title (relating to Requirements for a Provisional Speech-Language Pathology License) or sec.741.84(d) of this title (relating to Requirements for a Provisional Audiology License) in order to receive a full license. (e) An applicant applying for an assistant in speech-language pathology license under sec.741.65 of this title (relating to Requirements for an Assistant in Speech-Language Pathology License) or an assistant in audiology license under sec.741.85 of this title (relating to Requirements for an Assistant in Audiology License) must submit the following: (1) an application form obtained from the board office which shall contain: (A) specific information regarding personal data, employment and nature of professional practice, social security number, other state licenses and certifications held, disciplinary proceedings, felony and misdemeanor convictions, educational background and references; (B) a statement that the applicant has read the Act and the board rules and agrees to abide by them; (C) a statement that the applicant, if issued a license, shall return the license to the board upon the revocation or suspension of the license; (D) a statement that the applicant understands that fees submitted in the licensure process are nonrefundable; (E) the dated and notarized signature of the applicant; and (F) notification that the applicant may be entitled to a full refund if the application is not processed within the periods of time as required by sec.741.182 of this title; (2) the nonrefundable application fee; (3) a supervisory responsibility statement form obtained from the board office which contains: (A) the name, address, employer, area of licensure and license number of the supervisor; (B) the name, area of licensure and employer of the associate; (C) a statement that the supervisor is responsible for notifying the board office of any change in the supervisory arrangements; and (D) the dated and notarized signature of the supervisor; (4) an original or certified copy of transcript(s) of relevant course work; and (5) an original or certified copy from the director or designee of the college or university training program verifying the applicant completed the clinical experience set out in s741.65(a)(3) of this title or sec.741.85(a)(3) of this title; and (6) three letters of reference supporting the applicant's request for licensure. (f) An applicant applying for a speech-language pathology temporary certificate of registration under sec.741.66 of this title (relating to Requirements for a Temporary Certificate of Registration in Speech-Language Pathology) or an audiology temporary certificate of registration under sec.741.86 of this title (relating to Requirements for a Temporary Certificate of Registration in Audiology) must submit the following: (1) an application form obtained from the board office which shall contain: (A) specific information regarding personal data, employment and nature of professional practice, social security number, other state licenses and certifications held, disciplinary proceedings, felony and misdemeanor convictions, educational background, practicum experience, supervised experience and references; (B) a statement that the applicant has read the Act and the board rules and agrees to abide by them; (C) a statement that the applicant, if issued a license, shall return the license to the board upon the revocation or suspension of the license; (D) a statement that the applicant understands that fees submitted in the licensure process are nonrefundable; (E) the dated and notarized signature of the applicant; and (F) notification that the applicant may be entitled to a full refund if the application is not processed within the periods of time as required by sec.741.182 of this title; (2) the nonrefundable application fee; (3) an original or certified copy of transcript(s) of all relevant course work; (4) an original or certified copy from the director or designee of the college or university training program verifying the applicant completed the clinical experience set out in s741.61(8) of this title or sec.741.81(8) of this title. (5) a original or certified copy of a supervised post-graduate experience form which must contain the following information: (A) the name of the applicant; (B) the supervisor's name, address, degree, and licensure status; (C) the name and address of the agency or organization where the experience was gained; (D) the inclusive dates of the supervised experience and the total number of hours of supervised post-graduate practice; (E) the number of hours of weekly face-to-face supervision provided for the applicant and the types of supervision used (direct, observation room, video tape, audio tape, review of records, etc.); (F) the applicant's employment status during supervised experience; and (G) the supervisor's signature; and (6) three letters of reference supporting the applicant's request for licensure. (g) A licensed audiologist or licensed intern in audiology who wishes to fit and dispense hearing aids/hearing instruments under sec.741. 87 of this title (relating to Requirements for Registration of Audiologists and Interns in Audiology who Fit and Dispense Hearing Aids) must submit the following: (1) a registration form obtained from the board office which shall contain: (A) the name, address, social security number, license number, expiration date of license and signature of the licensee; and (B) a statement that the audiologist or intern in audiology agrees to adhere to requirements of the Act and board rules and to comply with Title 21, Chapter 1, Code of Federal Regulations; and (2) the nonrefundable registration fee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331528 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter G. Licensure Examinations 22 TAC sec.sec.741.121-741.123 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.121. Purpose. sec.741.122. Frequency. sec.714.123. Requirements. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331542 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter I. Licensure Examinations 22 TAC sec.sec.741.121-741.123 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.121. Purpose. The purpose of this subchapter is to establish board rules governing the procedures for examination of applicants for licensure as speech-language pathologists and audiologists. sec.741.122. Administration.
                                                        Licensure examinations will be administered for the board by the Educational Testing Service (ETS) to applicants at least twice a year. Requests to take the speech-language pathology or audiology examination should be mailed to NTE Programs, Educational Testing Service, P.O. Box 6051, Princeton, New Jersey 08541-6051, or phone: (609) 771-7395. sec.741.123. Procedures. (a) An applicant wishing to take the required examination shall contact the Educational Testing Service (ETS) directly for any required registration forms, fees or other information. The applicant shall pay the fee to the testing service. (b) Upon receiving the request to take an examination, the ETS may furnish a Bulletin of Information to the applicant that describes the program, procedures for registration, and any requirements or regulations pertinent to the applicant. The date, time, and place of the next scheduled examinations may be furnished to the applicant. A descriptive booklet with sample test questions, along with other materials, may be furnished to all applicants who register for a particular examination. (c) An applicant shall have satisfied the examination requirements of the board if the applicant has passed the national examination in speech-language pathology or audiology administered by the ETS. (d) An applicant shall indicate on the registration form the Code #8327 assigned to the board so that the applicant's test score will be sent to the board. (e) An applicant who fails the examination may be examined at a subsequent time if he or she pays another nonrefundable examination fee. (f) An applicant who has taken and failed to pass two examinations may not take the examination until the person has submitted a new application together with a nonrefundable application fee and presented evidence to the board of additional study in the area for which licensure is sought. (g) An applicant who fails a licensing examination administered by ETS under the Act shall contact ETS to request a profile of his or her performance on the examination. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331527 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter H. Licensing 22 TAC sec.sec.741.141-741.145 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.141. Purpose. sec.741.142. Temporary Certificate of Registration. sec.741.143. Issuance of License. sec.741.144. Display of Certificate. sec.741.145. Reciprocity. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331541 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter J. Licensing and Registration Procedures 22 TAC sec.sec.741.141-741.143 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.141. Purpose. The purpose of this subchapter is to set out licensing procedures of the board. sec.741.142. Issuance of License and Registration. (a) The board shall send each applicant for a speech-language pathology or audiology license who met the requirements of s741.61 of this title (relating to Requirements for a Speech-Language Pathology License), sec.741.63 of this title (relating to Special Conditions for Licensure of Speech-Language Pathologists), s741.81 of this title (relating to Requirements for a Audiology License), or sec.741.83 of this title (relating to Special Conditions for Licensure of Audiologists) whose application has been approved, a form to complete and return with the nonrefundable initial license fee. This fee must be submitted to the executive secretary no later than 90 days following the date of the request or the application and approved will be voided. (1) The initial license and the initial license fee shall be prorated according to the licensee's birth month. Any applicant approved for license within three months of the applicant's birth month shall pay the prorated amount plus one year license fee. Any applicant approved for less than 12 months, but for more than three months, shall pay a fee prorated for only those months. The prorated fee and all licensee records are based on the month of approval through the last day of the birth month. An applicant may not practice in the professional area in which he or she applied for a license until the initial license fee has been received by the board. (2) Upon receiving an applicant's license form and initial license fee, the board shall issue the applicant: (A) a license; (B) a certificate; and (C) an ID card. (3) The license may be renewed as required by sec.741.162 of this title (relating to General). (b) The board shall send each applicant for an intern license who met the requirements of sec.741.62 of this title (relating to Requirements for an Intern in Speech-language Pathology License) or sec.741.82 of this title (relating to Requirements for an Intern in Audiology License) whose application has been approved, a form to complete and return with the nonrefundable initial license fee. Upon receipt of the license form and fee, the board shall issue a license that will expire one year from the issue date. The license may be renewed as required by s741.162 of this title (relating to General). (c) The board shall send each applicant for a provisional license who met the requirements of sec.741.64 of this title (relating to Requirements for a Provisional Speech-Language Pathology License) or sec.741.84 of this title (relating to Requirements for a Provisional Audiology License) whose application has been approved, a nonrenewable provisional license which is valid until the date the board approves or denies the application for a full license. Within the 180 days from date of issuance of the provisional license, the board shall either send the provisional licensee: (1) a speech-language pathology or audiology license issued under subsection (a) of this section that may be renewed as required by sec.741. 162 of this title; or (2) a letter of proposed denial if proof of having met the requirements of sec.741.61 of this title or sec.741.81 of this title and sec.741.122 of this title (relating to Administration) have not been received and accepted by the board. (d) The board shall send each applicant for an assistant license who met the requirements of sec.741.65 of this title (relating to Requirements for a Assistant in Speech-Language Pathology License) or sec.741.85 of this title (relating to Requirements for an Assistant in Audiology License) whose application has been approved, a form to complete and return with the nonrefundable initial license fee. (1) The initial license and the initial license fee shall be prorated according to the licensee's birth month. Any applicant approved for license within three months of the applicant's birth month shall pay the prorated amount plus one year license fee. Any applicant approved for less than 12 months, but for more than three months, shall pay a fee prorated for only those months. The prorated fee and all licensee records are based on the month of approval through the last day of the birth month. (2) Upon the applicant meeting the requirements set out in subsection (d) of this section and upon receiving an applicant's license form and fee, the board shall issue the applicant a license. (3) The license may be renewed as required by sec.741.162 of this title. (e) The board shall send each applicant for a temporary certificate of registration who met the requirements of sec.741. 66 of this title (relating to Requirements for a Temporary Certificate of Registration in Speech-Language Pathology) or sec.741.86 of this title (relating to Requirements for a Temporary Certificate of Registration in Audiology) whose application has been approved, a nonrenewable certificate of registration which is valid for a period ending eight weeks after the next scheduled examination as required by sec.741.122 of this title. (f) The board shall send each audiologist or intern in audiology licensed under this Act who met the requirements of sec.741.87 of this title (relating to Requirements for Registration of Audiologist and Intern in Audiology who Fit and Dispense Hearing Aids) form to register his or her intent to fit and dispense hearing aids has been accepted and the nonrefundable registration fee has been paid, a certificate of registration. This registration is valid from date of issue through the last day of the licensee's birth month. This registration may be renewed as required by sec.741.162 of this title (relating to General). (g) Any license, certificate, or registration issued by the board remains the property of the board. (h) An application may be denied if the applicant's license to practice speech-language pathology or audiology in another state or jurisdiction has been suspended, revoked, or otherwise restricted by the licensing entity in that state or jurisdiction for reasons relating to the applicant's professional competence or conduct which could adversely affect the health and welfare of a client. (i) The board is not responsible for lost, misdirected, or undelivered correspondence, including forms and fees, if sent to the address last reported to the board. (j) Upon written request from the licensee and payment of the duplicate fee, a duplicate license, certificate, or registration may be obtained from the board. sec.741.143. Display of License, Certificate, or Registration. (a) Each speech-language pathologist or audiologist is encouraged to display the certificate with a current license as issued by the board in the primary location of practice. (b) A licensee shall not display a license, certificate or registration issued by the board which has been photographically or otherwise reproduced. (c) A licensee shall not make any alteration on official documents issued by the board. (d) A licensee may display a duplicate certificate in the same manner as the original certificate. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331526 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter I. License Renewal 22 TAC sec.sec.741.161-741.163 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.161. Purpose. sec.741.162. General. sec.741.163. Requirements for Continuing Professional Education. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331540 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter K. License and Registration Renewal 22 TAC sec.sec.741.161-741.166 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.161. Purpose. The purpose of this subchapter is to set out the rules governing license renewal for speech-language pathologists, audiologists, interns and assistants and registration renewal for audiologists and interns in audiology who fit and dispense hearing aids. sec.741.162. General. (a) Each licensed speech-language pathologist, audiologist, intern, or assistant is responsible for license renewal before the expiration date. The board shall use the following system to determine the date on which the license expires. (1) The annual renewal date of a license for all speech-language pathologists, audiologists, or assistants shall be the last day of the licensee's birth month. (2) The annual renewal date of a license for all interns shall be the same as that of the issue date. (3) An audiologist or intern in audiology registered to fit and dispense hearing aids/hearing instruments must renew the registration at the time the license is renewed. (b) At least 45 days prior to the expiration date of an individual's license, the executive secretary shall send to the licensee a license renewal notice which will include the following: (1) the name and address of the licensee; (2) the expiration date of the license; (3) the amount of the renewal fee due; (4) the number of continuing education hours required for renewal; and (5) a form, which a supervisor must complete, if required. (c) Each licensee shall annually pay the nonrefundable fee for license renewal. The executive secretary shall not consider a license to be renewed until the completed license renewal form, proof of earned continuing education, and the renewal fee have been mailed to the board office. In addition, an intern must submit a form signed by the supervisor verifying the professional experience completed and the plan for the following year's experience and an assistant must provide an updated supervisory responsibility statement signed by the assistant's supervisor. The postmarked date is the date of mailing. (d) Renewal of a speech-language pathology, audiology, intern, or assistant license is contingent on the applicant meeting uniform continuing education requirements established by the board. Any continuing education hours earned before the effective date of the license are not acceptable. (e) Each licensee is required to provide current addresses and telephone numbers, employment information, and other information on the license renewal form. (1) A request to change the name as issued on the certificate or license must be submitted in writing with a copy of the divorce decree, marriage certificate, or social security card showing the new name. (2) The board is not responsible for lost, misdirected, or undelivered renewal forms and fees if sent to the address last reported to the board. (f) The board shall issue a renewed license to each speech-language pathologist, audiologist, intern, or assistant who has met all requirements for renewal. (g) The board shall deny renewals pursuant to the Education Code, sec.57.491, relating to defaults on guaranteed student loans. (h) A 60-day grace period, after the date of expiration of a license, shall be allowed. A licensee may continue to practice during the grace period and must follow all requirements of the Act and this chapter. (i) If a license is placed on inactive status or is not renewed before the end of the 60-day grace period, the licensee must cease practicing or representing himself or herself as a speech-language pathologist, audiologist, intern, or assistant. (j) Prior to expiration of a license or the end of the 60-day grace period, a licensee may request inactive status and, if accepted, shall remain in this status until renewed or deleted in accordance with sec.741.164 of this title (relating to Inactive Status). (k) After the end of the 60-day grace period, unless inactive status was granted, a licensee may renew his or her license in accordance with sec.741.165 of this title (relating to Late Renewal of a License). (l) A license not renewed within two years of the date of expiration may not be renewed. However, the individual may reapply for licensure if requirements of Subchapter E of this chapter (relating to Requirements for Licensure and Registration of Speech-Language Pathologists) or Subchapter F of this chapter (relating to Requirements for Licensure and Registration of Audiologists) are met. (m) An individual who within the last three years was licensed in this state and is currently licensed and has been in practice in another state for the two years preceding application may renew the Texas license without reexamination if the individual submits the following: (1) an original or certified copy of a letter from the licensing board where he or she currently holds a valid license verifying: (A) the area in which the license was issued; (B) the date of issue; (C) the date of expiration; and (D) whether derogatory information is on record; (2) a fee equal to the examination fee; and (3) proof of having earned at least ten approved continuing education hours during the preceding 12 months. (n) In case of medical hardship, a former licensee may: (1) request that the license be renewed without a penalty being assessed if the following is submitted: (A) an original letter signed by the licensee's physician stating the licensee was unable to practice for at least six months during that renewal period because of a physical or mental disability; (B) any approved continuing education hours earned during the renewal period; and (C) the renewal fee; or (2) petition the board if the person does not meet paragraph (1)(A) of this subsection but believes he or she has a valid medical reason for the late renewal. (o) A suspended license is subject to expiration and may be renewed as provided in this subchapter; however, the renewal does not entitle the licensee to engage in the licensed activity or in any other activity or conduct in violation of the order or judgement by which the license was suspended, until such time as the license is fully reinstated. (p) A license revoked on disciplinary grounds may not be renewed. If it is reinstated, the former licensee, as a condition of reinstatement, shall pay a reinstatement fee in an amount equal to the renewal fee in effect, plus the late renewal penalty fee, if any, accrued since the time of the license revocation. (q) An audiologist or intern in audiology who fits and dispenses hearing aids must submit an updated notarized registration form with the registration fee each year at the same time the audiology or intern, in audiology license is renewed. If the licensee does not wish to continue to fit and dispense hearing aids at the time he or she renews the license, the licensee must return the registration form informing the board of that decision. Should the licensee later wish to fit and dispense, he or she may submit the completed registration form and fee. sec.741.163. Requirements for Continuing Professional Education. Continuing professional education requirements must be met for renewal of a speech-language pathology, audiology, intern or assistant license. (1) Continuing professional education in speech-language pathology and audiology consists of a series of planned individual learning experiences beyond the basic educational program which has led to a degree or qualifies one for licensure. (A) Continuing professional education must be in the following areas: (i) basic communication processes; (ii) speech-language pathology; (iii) audiology; or (iv) an area of study related to the areas listed in clauses (i), (ii), or (iii) of this subparagraph. (B) Continuing education hours under subparagraph (A)(iv) of this paragraph shall be considered if the licensee submits a description of the continuing education activity; prior approval is advised. Review by the board or the appropriate committee to determine that the activity is in a related area may require the submission of additional information. Any continuing education hours earned in a related area must further the knowledge of speech-language pathology or audiology or enhance service delivery. Partial credit may be awarded. (2) A continuing education unit (CEU) is the basic unit of measurement used to credit individuals with continuing education activities for licensure. One CEU is defined as ten contact hours of participation in an approved continuing education experience. (3) Continuing education requirements must be of such a nature that they can be met without necessitating an extended absence from the licensee's county of residence. (4) Ten clock hours (one CEU) will be required for yearly renewal; provided, however, 15 clock hours (1.5 CEU's) will be required for holders of dual speech- language pathology and audiology licenses. A licensee renewing an initial license must submit the following continuing education hours. If the license was issued for: (A) four months-3.0 clock hours; (B) five months-4.0 clock hours; (C) six months-4.75 clock hours; (D) seven months-5.50 clock hours; (E) eight months-6.25 clock hours; (F) nine months-7.0 clock hours; (G) ten months-8.0 clock hours; (H) 11 months-8.75 clock hours; or (I) 12 months-9.5 clock hours; (5) Earned continuing education hours exceeding the minimum requirements in a previous renewal period shall first be applied to the continuing education requirements for the current renewal period. A maximum of 20 additional clock hours may be accrued during a license period to be applied to the next two consecutive renewal periods; provided, however, a maximum of 30 additional clock hours may be accrued for dual speech-language pathology and audiology licenses during a license period to be applied to the next two consecutive renewal periods. (6) If a licensee successfully completes course work from an accredited college or university, that course work may be accepted for continuing education credit. The licensee must submit an original or certified copy of the transcript and complete a statement that this was a continuing education experience. Ten continuing education clock hours or one continuing education unit equals one semester hour of course work; however, partial credit may be granted when course work has been earned under paragraph (1)(A)(iv) of this subsection. (7) The taking and passing of the licensure examination in speech-language pathology or audiology as referenced in s741.122 this title (relating to Administration) within the renewal period, will meet the continuing education requirement for license renewal for three consecutive years. (8) The continuing education requirement will begin upon first renewal. Each subsequent renewal will require documentation of the continuing education experiences. (9) Approved sponsors will be designated by the board. The board will provide a list of approved continuing education sponsors which will be revised and updated periodically. Any continuing education activity must be provided by an approved sponsor. (10) The board office will accept a letter or form bearing a valid signature or verification as authorized by the continuing education sponsor as proof of completion of a valid continuing education experience. Unauthorized signatures or verification will not be accepted. (11) Evidence of the acquisition of continuing education credit shall be submitted to the board together with the license renewal form and fee at the time of renewal. sec.741.164. Inactive Status. (a) Prior to the expiration of the license a speech-language pathologist, audiologist, intern or assistant may request that his or her license be declared inactive by written request to the board. The request must be submitted with the inactive status fee. The postmarked date is the date of mailing. (b) A person may not practice or represent himself or herself as a licensed speech-language pathologist, audiologist, intern, or assistant during the period of inactive status. (c) The maximum time that a license may be inactive is three years past the date of expiration of the license. The licensee must submit an additional inactive status fee for each year as follows: (1) the fee must be received on or before a date that is one year past expiration of the license if the licensee wishes the license to remain inactive for a second year; and (2) another inactive status fee must be submitted on or before a date that is two years past expiration of the license, if the licensee wishes the license to remain inactive for the third and final year. (d) An inactive status period shall begin following expiration of the license. (e) A late renewal penalty fee will be assessed for each speech-language pathologist, audiologist, intern or assistant who fails to submit the inactive status fee within the required time frames. The licensee may then reactivate the license as required by sec.741.165 of this title (relating to Late Renewal of a License). (f) The inactive license may be reactivated at any time by submitting a written request and proof of having earned ten continuing education hours during the twelve month period preceding the request to reactivate the license. If approved, active status shall begin on the date of approval. (g) The licensee's next continuing education cycle will begin upon return to active status. (h) A license that is not reactivated within the three-year period may not be renewed, and the license may not be restored, reissued, or reinstated thereafter, but that person may reapply for and obtain a new license if requirements of the Act are met. (i) An individual with a license placed in the inactive status is subject to investigation and action under sec.741.193 of this title (relating to Complaint Procedures). sec.741.165. Late Renewal of a License. (a) A speech-language pathologist, audiologist, intern, or assistant who fails to renew his or her license before the end of the 60-day grace period will be assessed a late renewal penalty unless the license had been placed in the inactive status. (b) The licensee must submit the following if he or she wishes to renew the license: (1) payment of the late renewal penalty fee; and (2) proof of having earned or accrued continuing education as follows: (A) if renewing before the end of the first year of the inactive status, no continuing education hours need to be earned if the licensee is renewing an initial license; (B) if renewing before the end of the first year of inactive status, at least ten continuing education hours or 15 for holders of dual speech-language pathology and audiology licenses; (C) if renewing at the end of the first year of inactive status but before the end of the second year, at least 20 continuing education hours or 30 hours for holders of dual speech-language pathology and audiology licenses; (D) if renewing at the end of the second year of inactive status, at least 30 continuing education hours or 45 hours for holders of dual speech-language pathology and audiology license; and (E) the hours earned or accrued before expiration of the license shall count toward meeting these hours. (c) After renewal of the license, the licensee shall earn and accrue continuing education hours as required by s741.163 of this title (relating to Requirements for Continuing Professional Education). (d) An individual with an expired license is subject to investigation and action under sec.741.193 of this title (relating to Complaint Procedures). (e) A license that is not reactivated within the two year period after expiration may not be renewed and the license may not be restored, reissued, or reinstated thereafter, but that person may reapply for and obtain a new license if requirements of the Act are met. sec.741.166. Renewal of Licensee on Active Military Duty. If a licensee fails to timely renew his or her license on or after August 1, 1990, because the licensee is or was on active duty with the armed forces of the United States of America serving outside the State of Texas, the licensee may renew the license pursuant to this section. (1) Renewal of the license may be requested by the licensee, the licensee's spouse, or an individual having power of attorney from the licensee. The renewal form shall include a current address and telephone number for the individual requesting the renewal. (2) Renewal may be requested before or after expiration of the license. (3) A copy of the official orders or other official military documentation showing that the licensee is or was on active duty serving outside the State of Texas shall be filed with the board along with the renewal form. (4) A copy of the power of attorney from the licensee shall be filed with the board along with the renewal form if the individual having the power of attorney executes any of the documents required in this subsection. (5) A licensee renewing under this section shall pay the applicable renewal fee, but not any late renewal penalty fee. (6) A licensee renewing under this section shall submit proof of any clock hours of continuing education earned prior to being called to active duty serving outside the State of Texas, and no further continuing education hours shall be required for that renewal. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331525 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter J. Fees and Late Renewal Penalties 22 TAC sec.741.181, sec.741.182 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.181. Schedule of Fees and Late Renewal Penalties. sec.741.182. Processing Procedures. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331539 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter L. Fees and Processing Procedures 22 TAC sec.741.181, sec.741.182 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.181. Schedule of fees. The purpose of this section is to establish a schedule of fees to provide the funds to support the activities of the board. (1) The schedule of fees and is as follows: (A) application fee-$35; (B) provisional license fee-$35; (C) temporary certificate of registration fee-$35; (D) registration fee for audiologist and intern in audiology who fit and dispense hearing aids-$10; (E) initial license fee (prorated)-$35; (F) initial dual license as a speech-language pathologist and audiologist fee ( prorated)-$55; (G) license renewal fee-$35; (H) dual license as a speech-language pathologist and audiologist renewal fee- $55; (I) duplicate license, certificate or registration fee -$10; (J) inactive fee-$35; (K) late renewal penalty fee-an amount equal to the renewal fee(s), with a maximum of two renewal fees, plus the examination fee; and (L) examination fee-the amount charged by the department's designee administering the examination. (2) Any licensee attaining the age of 65 years shall have their license renewal fee waived, but if renewed after the expiration of the 60-day grace period, the late renewal penalty fee will be assessed. (3) Fees paid to the board are nonrefundable. (4) Any remittance submitted to the board in payment of a required fee must be in the form of a personal check, certified check, or money order unless this section requires otherwise. Checks from foreign financial institutions are not acceptable. (5) An applicant whose check for the application fee is returned marked insufficient funds, account closed or payment stopped shall be allowed to reinstate the application by remitting to the board a money order or check for guaranteed funds within 30 days of the date of the receipt of the board's notice. An application will be considered incomplete until the fee has been received and cleared through the appropriate financial institution. (6) An approved applicant whose check for the initial license fee is returned marked insufficient funds, account closed or payment stopped shall remit to the board a money order or check for guaranteed funds within 30 days of the date of receipt of the board's notice. Otherwise, the application and the approval shall be invalid. (7) A license whose check for the renewal fee is returned marked insufficient funds, account closed or payment stopped shall remit to the board a money order or check for guaranteed funds within 30 days of the date of receipt of the board's notice. Otherwise, the license shall not be renewed. If a renewal card has already been issued, it shall be invalid. If the guaranteed funds are received after expiration of the 60-day grace period, a late renewal penalty fee will be assessed. sec.741.182. Processing Procedures. (a) The board shall comply with the following procedures in processing applications for licensure, registration, and renewal. (1) 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: (A) letter of approval-15 working days; and (B) letter of deficiency-15 working days. (2) 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 law and of the opportunity for a formal hearing. The time periods are as follows: (A) letter of approval-15 working days; (B) letter of denial-30 working days; and (C) letter of approval or denial of licensure for an individual who holds a provisional license-180 days. (b) The board shall comply with the following procedures in reimbursement of fees. (1) In the event an application is not processed in the time periods stated in subsection (a) of this section, 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 executive secretary. If the executive secretary 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. (2) Good cause for exceeding the time period is considered to exist if the number of applications for licensure, certificates of registration, and licensure 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 board in the application process caused the delay; or any other condition exists giving the board good cause for exceeding the time period. (c) If a request for reimbursement under subsection (b) of this section is denied by the executive secretary, the applicant may appeal to the chairperson of the board for a timely resolution of any dispute arising from a violation of the time periods. The applicant shall give written notice to the chairperson 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 executive secretary 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 chairperson shall provide written notice of the chairperson's decision to the applicant and the executive secretary. 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. (d) Contested cases related to the denial of licensure, certificates of registration, or license renewals shall be handled in accordance with the provisions of 25 Texas Administrative Code sec.1.34 (relating to Time Periods for Conducting Contested Case Hearings) as adopted by the Texas Department of Health. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331524 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter K. Denial, Suspension, or Revocation of Licensure 22 TAC sec.sec.741.191-741.199 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.191. Purpose. sec.741.192. Basis for Denial, Suspension, or Revocation of Licensure. sec.741.193. Complaint Procedures. sec.741.194. Procedures for Denying, Suspending or Revoking a License. sec.741.195. Violations by Non-Licensed Individuals. sec.741.196. Penalties. sec.741.197. Licensing of Individuals with Criminal Backgrounds to be Speech- Language Pathologists, Audiologists, Licensed Associates in Audiology and Licensed Associates in Speech- Language Pathology. sec.741.198. Formal Hearings. sec.741.199. Surrender of License. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331538 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter M. Denial, Probation, Suspension, or Revocation of Licensure or Registration 22 TAC sec.sec.741.191-741.199 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.191. Purpose. The purpose of this subchapter is to set forth the basis and procedures for the denial, probation, suspension or revocation of a license or registration including procedures for complaints, investigations, formal hearings, surrender of a license, informal disposition and default orders. sec.741.192. Basis for Denial, Probation, Suspension, or Revocation of Licensure or Registration. (a) The board may refuse to issue or renew a license or registration to an applicant or may revoke, probate, or suspend the license or registration of a speech-language pathologist, audiologist, intern, or assistant who: (1) obtained a license or registration by means of fraud, misrepresentation, or concealment of material facts; (2) sold, bartered, or offered to sell or barter a license or registration; (3) exhibited unprofessional conduct as described in sec.741.41 of this title (relating to Code of Ethics); (4) violated any provision of the Act or this chapter or any lawful order of the board; or (5) violated any provision of a state or federal law pertaining to the licensee's or registrant's type of practice. (b) The board may also issue a written reprimand to a license holder under any grounds listed in subsection (a) of this section. Section 741.194 of this title (relating to the Procedures for Denying, Suspending, or Revoking a License or Registration) does not apply to the issuance of a reprimand. sec.741.193. Complaint Procedures. (a) An individual wishing to report a complaint against or alleged violation of the Act or this chapter by a licensee, registrant, or other person shall notify the executive secretary, 1100 West 49th Street, Austin, Texas 78756-3183, (512) 834-6627 or 1-800-942-5540. The initial notification of a complaint may be in writing, by telephone, or by personal visit to the board office. (b) Upon receipt of a complaint, the executive secretary may send to the complainant an official form which the complainant should complete and return to the board office. (c) The categories of complaints may include: (1) practicing without a license; (2) violation of the Code of Ethics; or (3) practicing without appropriate supervision, if required. (d) All parties shall be notified of the schedule that is established to determine when each phase of the complaint process will be completed. If a change is necessary, all parties shall be notified within seven days of the change. (e) The executive secretary may notify the alleged violator of the complaint and request a written response within 30 days. (f) The executive secretary shall collect all information related to the complaint. The chairperson shall appoint a committee to review the complaint and the supporting documentation to determine if there is sufficient evidence to request further investigation. (g) The complainant shall be given an opportunity to explain the allegations made in the complaint. (h) The committee may request further investigation of the complaint. After investigation has been completed, the person completing the investigation shall submit his or her findings to the committee and the executive secretary. The written investigative report shall set out all pertinent facts obtained during the investigation. (i) If the committee determines that there are insufficient grounds to support or act upon the complaint, the committee may dismiss the complaint and give written notice of the dismissal, explaining why this action was taken, to the complainant and the licensee, registrant or person against whom the complaint has been filed. The committee will report to the board that the complaint was dismissed and the reason for dismissal. (j) If the committee determines that there are sufficient grounds to support the complaint, the committee may recommend to the board that the license or registration be denied, suspended, probated, or revoked; that a written reprimand be issued or that other appropriate action as authorized by law be taken. (k) The executive secretary shall determine whether the complaint fits within the category of a serious complaint affecting health or safety of clients or other persons. (l) If an investigation is done, the investigator shall always attempt to contact the complainant to discuss the complaint. (m) The board shall use a private investigator only if the Texas Department of Health's investigators available to the board have a conflict of interest. sec.741.194. Procedures for Denying, Suspending, or Revoking a License or Registration. (a) Prior to institution of formal proceedings to revoke or suspend a license or registration, the board shall give written notice to the licensee or registrant by certified mail, return receipt requested, of the facts or conduct alleged to warrant revocation or suspension, and the licensee or registrant shall be given the opportunity, as described in the notice, to show compliance with all requirements of the Act and this chapter. (b) A formal proceeding to revoke or suspend a license or registration shall be commenced by filing charges with the board in writing and under oath. The charges may be made by any person. A formal proceeding to deny a license shall be commenced by issuance of the notice required by subsection (c) of this section. (c) If denial, revocation, probation, or suspension of a license is proposed, the board shall give written notice that the licensee, applicant or registrant must request, in writing, a formal hearing within ten days of receipt of the notice, or the right to a hearing shall be waived and the license or registration shall be denied, revoked, probated, or suspended. The notice shall include a copy of written charges, if applicable. Receipt of the notice is presumed to occur on the tenth day after the notice is mailed to the last address known to the board unless another date is reflected on a United States Postal Service return receipt. (d) If the applicant, licensee, or registrant does not respond as required by subsection (c) of this section, the formal hearing is deemed to be waived, and the board may deny, suspend, revoke, or impose probationary conditions on the license or registration. (e) If the applicant, licensee, or registrant requests a formal hearing: (1) the committee of the board may request that a formal hearing be set by the Texas Department of Health, Office of General Counsel. The chairperson shall appoint a hearing examiner to conduct the formal hearing. The hearing examiner shall recommend final action to the board based on the evidence presented at the formal hearing; or (2) the committee of the board may request that the board schedule and conduct a formal hearing. (f) Not less than one year from the date of revocation of a license or registration, application may be made to the board for reinstatement. The board may accept or reject an application for reinstatement and may require an examination for the reinstatement. (g) If the board suspends a license or registration, the suspension shall remain in effect until the board determines that the reason for the suspension no longer exists or for the period of time stated in the order. (h) If a suspension overlaps a license or registration renewal date, the individual whose license or registration is suspended may comply with the renewal procedures in this chapter; however, the board may not renew the license or registration until the board determines that the reason for the suspension no longer exists or the period of suspension is completed. (i) If a license or registration suspension is probated, the board may require the license or registration holder to: (1) report regularly to the board on matters that are the basis of the probation; (2) limit practice to the areas prescribed by the board; or (3) continue or review continuing professional education until the license or registration holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (j) If the board denies an initial license, renewal, or registration request, a person may reapply for a license or registration, if applicable, by complying with the then-existing requirements and procedures for application. The board may refuse to issue a license or registration if the reason for the denial continues to exist. (k) Upon revocation, suspension, or nonrenewal, a licensee or registrant shall return his or her license, certificate or registration to the board. (l) The executive secretary shall monitor each license or registration against whom a board order is issued to ascertain that the licensee performs the required acts. sec.741.195. Licensing or Registration of Individuals with Criminal Backgrounds. (a) This section establishes guidelines and criteria on the eligibility of individuals with criminal backgrounds to obtain licenses or registration as speech-language pathologists, audiologists, interns, or assistants. (1) The board shall have the authority to obtain from the Texas Department of Public Safety or from a local law enforcement agency the record of any conviction of any person applying for or holding a license or a registration from the board. (2) The board may suspend or revoke an existing license or registration, disqualify an individual from receiving a license or registration or deny to an individual the opportunity to be examined for a license or registration because of an individual's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a speech-language pathologist, audiologist, intern, or assistant. (3) In considering whether a criminal conviction directly relates to the profession of a speech-language pathologist, audiologist, intern, or assistant, the board shall consider: (A) the nature and seriousness of the crime; (B) the relationship of the crime to the purposes for requiring a licensee or registration to be a speech-language pathologist, audiologist, intern, or assistant; (C) the extent to which a license or registration might afford an opportunity to repeat the criminal activity in which the individual 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 speech- language pathologist, audiologist, intern, or assistant. (i) In making this determination, the board shall consider the following evidence: (I) the extent and nature of the person's past criminal activity; (II) the age of the person at the time of the commission of the crime; (III) the amount of time that has elapsed since the person's last criminal activity; (IV) the conduct and work activity of the person prior to and following the criminal activity; (V) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release; and (VI) other evidence of the person's present fitness, including letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the sheriff and chief of police in the community where the person resides; and any other persons in contact with the convicted person; (ii) it shall be the responsibility of the applicant to the extent possible to secure and provide to the board the recommendations of the prosecution, law enforcement, and correctional authorities; the applicant shall also furnish proof in such form as may be required by the board that he or she has maintained a record of steady employment and has supported his or her dependents and has otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which he or she has been convicted. (b) Upon a licensee's or registrant's felony conviction, felony probation revocation, revocation of parole, or revocation of mandatory supervision, his or her license or registration shall be subject to revocation. (c) The following felonies and misdemeanors directly relate because these criminal offenses indicate an inability or a tendency for the person to be unable to perform or to be unfit for licensure or registration: (1) the misdemeanor of violating the Act; (2) a conviction relating to deceptive business practices; (3) a conviction relating to Medicare or Medicaid fraud; (4) a misdemeanor or felony offense involving: (A) murder; (B) assault; (C) burglary; (D) robbery; (E) theft; (F) sexual assault; (G) injury to a child; (H) injury to an elderly person; (I) child abuse or neglect; (J) tampering with a governmental record; (K) forgery; (L) perjury; (M) failure to report abuse; (N) bribery; (O) harassment; or (P) insurance claim fraud under the Penal Code, sec.32.55; (5) a conviction relating to delivery, possession, manufacturing, or use of a controlled substance, dangerous drug, or narcotic; or (6) other misdemeanors or felonies, including convictions under the Texas Penal Code, Titles 4, 5, 7, 9, and 10, which indicate an inability or tendency for the person to be unable to perform as a licensee or registrant or unfit for licensure or registration if action by the board will promote the intent of the Act, this chapter, and Texas Civil Statues, Article 6252-13c. (d) Procedures. (1) The executive secretary will give written notice to the individual that the board or a committee of the board intends to deny, suspend, or revoke the license or registration after hearing, in accordance with the provisions of sec.741.196 of this title (relating to Formal Hearings). (2) If the board denies, suspends, or revokes a license or registration under this subsection after hearing, the executive secretary will give the individual written notice in accordance with Texas Civil Statutes, Article 6252-13d. sec.741.196. Formal Hearings. (a) The board shall abide by the Texas Department of Health's formal hearing procedures in 25 TAC Chapter 1 (relating to the Board of Health) with the following exceptions: (1) all final orders or decisions will be made by the board; (2) the board is not required to adopt the recommendations of a hearing examiner and may take action as it deems appropriate and lawful; and (3) all references in the formal hearing procedures to "agency," "board," and "commissioner," means the State Board of Examiners for Speech-Language Pathology and Audiology. (b) All formal hearings unless otherwise determined by the hearing examiner or upon agreement of the parties shall be held in Austin. (c) The committee of the board may determine whether a hearing will be held before a hearing examiner or the board. If a hearing examiner is not utilized, the board shall conduct the formal hearing and contested case proceedings, and all references in this chapter to the hearing examiner shall be references to the board. (d) If the applicant or licensee fails to appear or be represented at the scheduled hearing, the person is deemed to be in agreement with the charges and proposed action and to have waived the right to a hearing. (e) The parties to a hearing shall be the applicant or licensee who requested the hearing and the committee appointed under sec.741.193 of this title (relating to Complaint Procedures). (f) A witness or deponent shall be paid for mileage, transportation, meals, and lodging expenses and a fee of $10 a day in accordance with the Administrative Procedure Act. sec.741.197. Surrender of License. (a) A licensee or registrant may offer his or her license or registration for surrender to the board office. The board will notify the licensee or registrant that the license or registration has been received. (b) The board shall consider accepting the voluntary surrender of the license or registration at its next regularly scheduled meeting which is at least 18 days after the offer of surrender. (c) When a licensee or registrant has offered the surrender of his or her license or registration after a complaint has been filed alleging violations of the Act or this chapter, and the board has accepted such a surrender, that surrender is deemed to be the result of a formal disciplinary action. (d) A license or registration which has been surrendered and accepted may not be reinstated; however, that person may apply for a new license or registration in accordance with the Act and this chapter. sec.741.198. Informal Disposition or Proceedings. (a) Informal disposition of any compliant or contested case involving a licensee or registrant or an applicant for licensure or registration may be made through an informal settlement conference held to determine whether an agreed settlement order may be approved. (b) If the executive secretary or the complaints committee of the board determines that the public interest might by served by attempting to resolve a complaint or contested case by an agreed order in lieu of a formal hearing, the provisions of this section shall apply. A licensee, registration, or applicant may request an informal settlement conference; however, the decision to hold a conference shall be made by the executive secretary or the complaints committee. (c) An informal conference shall be voluntary. It shall not be a prerequisite to a formal hearing. (d) The executive secretary shall decide upon the time, date and place of the settlement conference and provide written notice to the licensee, registrant, or applicant of the same. Notice shall be provided no less than ten days prior to the date of the conference by certified mail, return receipt requested, to the last known address of the licensee, registrant, or applicant or by personal delivery. The ten days shall begin on the date of mailing or delivery. The licensee, registrant, or applicant may waive the ten day notice requirement. (e) The notice shall inform the licensee, registrant or applicant of the nature of the alleged violation; that the licensee, registrant or applicant may be represented by legal counsel; that the licensee, registrant or applicant may offer the testimony of witnesses and present other evidence as may be appropriate; that committee members may be present; that the board's legal counsel or a representative of the Office of the Attorney General will be present; that the licensee's, registrant's or applicant's attendance and participation is voluntary; that the complainant and any client involved in the alleged violations may be present; and that the settlement conference shall be cancelled if the licensee, registrant or applicant notifies the executive secretary that he or she or his or her legal counsel will not attend. A copy of the board's rules concerning informal disposition shall be enclosed with the notice of the settlement conference. (f) The notice of the settlement conference shall be sent by certified mail, return receipt requested, to the complainant at his or her last known address or personally delivered to the complainant. The complainant shall be informed that he or she may appear and testify or may submit a written statement for consideration at the settlement conference. The complainant shall be notified if the conference is cancelled. (g) Members of the complaints committee may be present at a settlement conference. (h) The settlement conference shall be informal and shall not follow the procedures established in this chapter for contested cases and formal hearings. (i) The licensee or registrant, the licensee's or registrant's attorney, complaints committee members, and board staff may question witnesses, make relevant statements, present statements of persons not in attendance, and present such other evidence as may be appropriate. (j) The board's legal counsel or an attorney from the Office of the Attorney General shall attend each settlement conference. The complaints committee members or executive secretary may call upon the attorney at any time for assistance in the settlement conference. (k) The licensee shall be afforded the opportunity to make statements that are material and relevant. (l) Access to the board's investigative file may be prohibited or limited in accordance with the law relating to open records, Government Code, Chapter 552, and the Administrative Procedure Act, Government Code, Chapter 2001. (m) At the discretion of the executive secretary or the complaints committee members, a tape recording may or may not be made of none or all of the settlement conference. (n) The committee members or the executive secretary shall exclude from the settlement conference all persons except witnesses during their testimony, the licensee or registrant, the licensee's or registrant's attorney, and board staff. (o) The complainant shall not be considered a party in the settlement conference but shall be given the opportunity to be heard if the complainant attends. Any written statement submitted by the complainant shall be reviewed at the conference. (p) At the conclusion of the settlement conference, the complaints committee members or executive secretary may make recommendations for informal disposition of the complaint or contested case. The recommendations may include any disciplinary action authorized by the Act. The committee members may also conclude that the board lacks jurisdiction, conclude that a violation of the Act or this chapter has not been established, order that the investigation be closed, or refer the matter for further investigation. (q) The licensee, registrant, or applicant may either accept or reject at the conference the settlement recommendations. If the recommendations are accepted, an agreed settlement order shall be prepared by the board office or the board's legal counsel and forwarded to the licensee, registrant, or applicant. The order shall contain agreed findings of fact and conclusions of law. The licensee, registrant, or applicant shall execute the order and return the signed order to the board office within ten days of his or her receipt of the order. If the licensee, registrant, or applicant fails to return the signed order within the stated time period, the inaction shall constitute rejection of the settlement recommendations. (r) If the licensee, registrant, or applicant rejects the proposed settlement, the matter shall be referred to the executive secretary for appropriate action. (s) If the licensee, registrant or applicant signs and accepts the recommendations, the agreed order shall be submitted to the entire board for its approval. Placement of the agreed order on the board agenda shall constitute only a recommendation for approval by the board. (t) The identity of the licensee, registrant or applicant shall not be made available to the board until after the board has reviewed and accepted the agreed order unless the licensee, registrant or applicant chooses to attend the board meeting. The licensee, registrant, or applicant shall be notified of the date, time, and place of the board meeting at which the proposed agreed order will be considered. Attendance by the licensee, registrant, or applicant is voluntary. (u) Upon an affirmative majority vote, the board shall enter an agreed order approving the accepted settlement recommendations. The board may not change the terms of a proposed order but may only approve or disapprove an agreed order unless the licensee, or registrant or applicant is present at the board meeting and agrees to other terms proposed by the board. (v) If the board does not approve a proposed agreed order, the licensee, registrant, or applicant and the complainant shall be so informed. The matter shall be referred to the executive secretary for other appropriate action. (w) A proposed agreed order is not effective until the full board has approved the agreed order. The order shall then be effective in accordance with the Administrative Procedure Act, Government Code, Chapter 2001. (x) A licensee's or registrant's opportunity for an informal conference under this section shall satisfy the requirement of the Administrative Procedure Act, Government Code, sec.2001.054(c). (1) If the executive secretary or complaints committee determines that an informal conference shall not be held, the executive secretary shall give written notice to the licensee, registrant, or applicant of the facts or conduct alleged to warrant the intended disciplinary action and the licensee, registrant or applicant shall be given the opportunity to show, in writing, and as described in the notice, compliance with all requirements of the Act and this chapter. (2) The complainant shall be sent a copy of the written notice. The complainant shall be informed that he or she may also submit a written statement to the board office. sec.741.199. Default Orders. (a) If a right to a hearing is waived under sec.741.194 of this title (relating to Procedures for Denying, Suspending Revoking a License or Registration), the board shall consider an order denying, suspending, probating, or revoking the license or registration as described in written notice to the licensee, registrant, or applicant. (b) The licensee, registrant, or applicant and the complainant shall be notified of the date, time, and place of the board meeting at which the default order will be considered. Attendance is voluntary. (c) Upon an affirmative majority vote, the board shall enter an order imposing appropriate disciplinary action. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331523 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter L. Publication 22 TAC sec.sec.741.208-741.210 (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 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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, Section 5, which provides the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.208. Registry. sec.741.209. Consumer Information. sec.741.210. Other Publications. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331537 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter M. Academic Requirements for Examination and Dual Licensure for Speech-Language Pathologists and Audiologists 22 TAC sec.741.301 (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.) The repeals are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.301. Purpose. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331536 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 Subchapter N. Publications 22 TAC sec.sec.741. 301-741.303 The new sections are proposed under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules consistent with Article 4512j, and as necessary to administer and enforce the Act. sec.741.301. Publication of Directory, Addendum, and Newsletter. (a) Each year the board may publish a directory or addendum of all licensees that may include, but not be limited to, names, business addresses, telephone numbers, and professional designations of all current licensees. (b) Twice each year the board may publish a newsletter which may include such topics as continuing education requirements, continuing education sponsors, list of board members, the complaint 1-800 number, and current topics of concern to licensees. (c) Copies of the publications will be available to licensees, other state agencies, and the general public on request. The board may charge a fee to cover the cost of printing, paper and postage. sec.741.302. Consumer Information. (a) The board may prepare information of consumer interest which describes regulatory functions of the board and procedures to handle consumer complaints. (b) The board may make consumer information available to the general public and appropriate state agencies. sec.741.303. Other Publications.
                                                          The board, at its discretion, may prepare other publications pertinent to its functions for distribution to licensees and other appropriate recipients. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 3, 1993. TRD-9331522 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Proposed date of adoption: January 21, 1994 For further information, please call: (512) 834-6627 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 35. Pharmacy Services On behalf of the State Medicaid Director, the Texas Department of Health proposes amendments to sec.35. 405 and sec.35.601, concerning pharmacy services. The sections cover quantity limitations and reimbursement in pharmacy services. The purpose of the amendments is to allow pharmacy providers to make more efficient use of the new on-line, real-time billing system that began processing claims submissions in March, 1993. The new policies will allow providers to: use a "9" code in the "Basis of Cost Determination" field (423) and record the actual package-size used when submitting a claim for a drug purchased from a central purchasing entity; and impose a 50% of the previous amount of drug dispensed edit on all prescriptions instead of the previous 75%. If a claim fails the edit, it will be rejected and the provider will have to provide the help-desk with documentation of the reason for the early refill. Mr. Gary Bego, Health Care Financing budget director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Bego also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that contracted providers will not have to use artificial package-size entries to be paid correctly and will be able to determine and immediately resolve claims rejections due to the policy regarding early refills of Medicaid prescriptions. There will be no effect on small businesses as a result of enforcing the sections. There is no anticipated economic cost to providers who are required to comply with the proposed sections. There is no impact on local employment. Comments on the proposal may be submitted to Patricia Gladden, Texas Department of Health, Vendor Drug Division, 1100 West 49th Street, Austin, Texas 78756-3174 (512) 338-6967. Comments will be accepted for 30 days following publication of the proposal in the Texas Register. Subchapter D. Limitations 25 TAC sec.35.405 The amendments are proposed under the Human Resources Code, sec.32.021 and Texas Civil Statutes, Article 4413 (502), s16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). sec.35.405. Quantity Limitation.
                                                            The quantity of drugs prescribed depends on the prescribing practice of the physician and the needs of the patient. The Vendor Drug Program reimburses the provider for the prescribed quantity, provided the quantity does not exceed a six-month supply. The dispensing of authorized refills must be consistent with the prescribed dosage schedule and existing federal and state laws. To be reimbursed by the Vendor Drug Program, a refill must be dispensed only after 50%
                                                              [75%] of a previous dispensing of the same prescription would have been sued if taken according to the accompanying doctor's orders. A recipient may obtain an early Medication refill for a justifiable reason. A justifiable reason includes, but is not limited to, a dosage increase or an anticipated prolonged absence from the community. The reason must be noted on the prescription. Unless specific authorization is obtained from the physician, breakage, spillage, or loss of a medication are not considered justifiable reasons. The prescription obtained under this authorization is considered a new prescription. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 8, 1993. TRD-9331707 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Proposed date of adoption: January 28, 1994 For further information, please call: (512) 338-6967 Subchapter F. Reimbursement 25 TAC sec.35.601 The amendments are proposed under the Human Resources Code, sec.32.021, and Texas Civil Statutes, Article 4413 (502), s16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). sec.35.601. Legend and Nonlegend Medication. For all medication, legend and nonlegend, covered by the Vendor Drug Program and appearing in the Texas Drug Code Index (TDCI) and updates, the following requirements must be met. (1) Reimbursement to the pharmaceutical provider is based on estimated acquisition cost (EAC), verifiable by invoice audit, plus the department's currently established dispensing fee per prescription, or the usual and customary price charged the general public, whichever is lower. (2) Estimated acquisition cost is defined as wholesale estimated acquisition cost (WEAC) or direct estimated acquisition cost (DEAC), according to the pharmacist's usual purchasing source and the pharmacist's usual purchasing quantity, or as maximum allowable cost (MAC) for multisource products. All drug purchases from a central purchasing entity must be billed to the department as warehouse purchases. Use "9" code in the "Basis of Cost Determination" field (423) when billing these claims
                                                                [direct purchases in the quantities purchased by the central purchasing agent. If the quantities are larger than those shown in the TDCI, the largest package size shown in the TDCI is use for billing and reimbursement purposes]. The WEAC is established by the department using the current redbook or redbook update, less a percentage representing routing discounts received by pharmacists on wholesale drug purchases. The WEAC may not exceed wholesaler cost, as supplied by drug manufacturers, plus a percentage markup representing wholesaler operating costs and profits. The DEAC is established by the department using direct price information supplied by drug manufacturers. Providers are reimbursed only at the DEAC on all drug products that are available from select manufacturers/distributors who actively seek and encourage direct purchasing. The TDCI is used as the reference for drugs included in the scope of benefits and for allowable package sizes. No acquisition cost is billed to the department for samples dispensed. (3) Reimbursement for nonlegend drugs is based on the usual and customary price charged to the general public or EAC, plus 50% of the EAC, whichever is lower. No dispensing fee is added to the price of nonlegend drugs, and 50% of the EAC may not exceed the assigned dispensing fee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 8, 1993. TRD-9331708 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Proposed date of adoption: January 28, 1994 For further information, please call: (512) 338-6967 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 3. Life Accident and Health Insurance and Annuities Subchapter G. Plain Language Requirements for Health Benefit Policies 28 TAC sec.3.601, sec.3.602 The State Board of Insurance and the Commissioner of Insurance propose new sec.3.601 and sec.3.602, concerning the plain language requirements for health benefit policies. New sec.3.601 contains the purpose, scope, applicability, and definitions used in these sections. New sec.3.602 provides that health benefit plan certificates, policies, evidences of coverage, endorsements, amendments, applications, and riders must be written in plain language in order to be approved by the commissioner of insurance or issued by the health carrier. Section 3.602 also sets out the requirements and the test and methodology of testing for plain language to be used for health benefit plans, certificates, policies, evidences of coverage, endorsements, amendments, applications, and riders. Rhonda Myron, deputy commissioner, life/health, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for local government as a result of enforcing or administering the sections, and there will be no effect on local employment or the local economy. The cost to state government to implement these sections for the first five-year period the proposed sections will be in effect was included in the fiscal note for the underlying statute. There is no anticipated loss or increase in revenue to state or local government as a result of the sections. Based upon the cost per hour of labor, the cost of compliance for small businesses affected by the proposed sections will be the same as the cost of compliance for the largest businesses. Ms. Myron, also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections is the benefit of increasing the knowledge and awareness of insureds and potential insureds of the policy provisions of and other forms and riders related to health benefit plans. The economic costs for bringing any health benefit plan or form into compliance are anticipated to be from $100 to $5,000 per health benefit plan or form, depending upon the size and complexity of the plan or form, and the technology available to the health carrier. To be considered by the Commissioner and State Board of Insurance, comments on the proposal must be submitted in writing within 30 days after publication of the proposed section in the Texas Register, to Linda von Quintus-Dorn, Chief Clerk, Texas Department of Insurance, Mail Code 113-2A, P. O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment should be submitted to Rhonda Myron, Deputy Commissioner, Life/Health, Mail Code 106-1A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. The new sections are proposed under the Insurance Code, Articles 26.43, 3. 42, l.03A, and sec.1.23 of House Bill 1461, 73rd Legislature, Regular Session. The Insurance Code, Article 26.43, requires all health benefit plan certificates, policies, and riders be written in plain language, describes the statutory requirements for plain language, and requires the commissioner of insurance to prescribe the minimum score on the Flesch reading ease test or an equivalent test selected by the commissioner to achieve the plain language requirement. The Insurance Code, Article 3.42, contains filing requirements for policies, contracts, certificates, and forms subject to that statute and specifically authorizes the board to adopt reasonable rules and regulations as necessary to implement and accomplish the provisions of that statute. The Insurance Code, Article 1.03A, contains the requirements for rules of general application to be adopted by the commissioner of insurance and sec.1.23 of House Bill 1461 authorizes the promulgation and approval of rules relating to rates, policy forms and endorsements by the State Board of Insurance. The proposed new rules implement the Insurance Code, Articles 26.43 and 3. 42. sec.3.601. Purpose and Scope, Applicability, and Definitions Used in this Subchapter. (a) Purpose and Scope. The sections contained in this subchapter are intended to implement the Insurance Code, Article 26.43, and to establish plain-language requirements for health benefit plans or forms that will be approved by the department and issued by health carriers in this state. These sections establish the plain-language requirements and minimum score for readability for such health benefit plans or forms, in accordance with the Insurance Code, Article 26.43. These sections also establish procedures that health carriers must follow to demonstrate and assure compliance with the new requirements. (b) Applicability. These sections apply to all health benefit plans, including policies, certificates, evidences of coverage, riders, endorsements, amendments, and/or applications, approved by the commissioner on or after January 1, 1994, and issued in the State of Texas after such date. These sections do not apply to a health benefit plan group master policy or to a health benefit plan group master policy application or to an enrollment form for a health benefit plan group master policy, when the enrollment form is used solely to enroll individuals in the plan. These sections also do not apply to any health benefit plan forms approved by the commissioner under department rules before January 1, 1994. (c) Definitions. Commissioner-The commissioner of insurance of the State of Texas. Form-Any health benefit plan certificate, policy, evidence of coverage, endorsement, amendment, application, or rider. Franchise insurance policy-An individual health benefit plan under which a number of individual policies are offered to a selected group. The rates for such a policy may differ from the rate applicable to individually solicited policies of the same type and may differ from the rate applicable to individuals of essentially the same class. Health benefit plan-A group, blanket, or franchise insurance policy, a certificate issued under a group policy, a group hospital service contract, or a group subscriber contract or evidence of coverage issued by a health maintenance organization that provides benefits for health care services. The term does not include: (A) accident-only insurance coverage; (B) credit insurance coverage; (C) disability insurance coverage; (D) specified disease coverage or other limited benefit policies; (E) coverage of Medicare services under a federal contract; (F) Medicare supplement and Medicare Select policies regulated in accordance with federal law; (G) long-term care insurance coverage; (H) coverage limited to dental care; (I) coverage limited to care of vision; (J) coverage provided by a single-service health maintenance organization; (K) insurance coverage issued as a supplement to liability insurance; (L) insurance coverage arising out of a workers' compensation system or similar statutory system; (M) automobile medical payment insurance coverage; (N) jointly managed trusts authorized under 29 U.S.C., sec.141 et seq that contain a plan of benefits for employees that is negotiated in a collective bargaining agreement governing wages, hours, and working conditions of the employees that is authorized under 29 U.S.C., sec.157; (O) hospital confinement indemnity coverage; or (P) reinsurance contracts issued on a stop-loss, quota-share, or similar basis. Health carrier -Any entity authorized under the Insurance Code to provide health insurance or health benefits in this state, including an insurance company, a group hospital service corporation under the Insurance Code, Chapter 20, a health maintenance organization under the Insurance Code, Chapter 20A, and a stipulated premium company under the Insurance Code, Chapter 22. Limited Benefit Policy-a policy that meets the requirements of "limited benefit policy," as defined in Chapter 26, sec.26.4 of this title (relating to Definitions). sec.3.602. Plain Language Requirements. (a) All health benefit plan certificates, policies, evidences of coverage, endorsements, amendments, applications, or riders shall be written in plain language and shall comply with the requirements set forth in this Subchapter. (b) A health benefit plan certificate, policy, evidence of coverage, endorsement, amendment, rider, or application form, or a provision of such health benefit plan form shall comply with the following: (1) The text shall achieve a minimum score of 40 on the Flesch reading ease test as provided in this Subchapter. For purposes of this section, a Flesch reading ease test score shall be measured by the following method: (A) The number of words and sentences in the test shall be counted and the total number of words divided by the total number of sentences. The figure obtained shall be multiplied by a factor of 1.015. (B) The total number of syllables shall be counted and divided by the total number of words. The figure obtained shall be multiplied by a factor of 84.6. (C) The sum of the figures computed under paragraphs (A) and (B) of this section, subtracted from 206.835 equals the Flesch reading ease score for the form. (D) The entire health benefit plan, including applications, endorsements, riders, and amendments shall be analyzed in determining the Flesch reading east test score; however: (i) forms submitted independently of the health benefit plan shall be analyzed independently and subject to all requirements of this subchapter; and (ii) endorsement, amendment, or rider forms submitted independently of the health benefit plan that contain fewer than 150 words are not subject to the analysis. (2) The form, except for specification pages, schedules, and tables, shall be printed in not less than ten-point type, one-point leaded; (3) The style, arrangement, and overall appearance of the form shall give no undue prominence to any portion of the text. The form shall be appropriately divided and captioned in meaningful sequence such that each section contains an underlined, boldfaced, or otherwise conspicuous title or caption at the beginning of the section that indicates the nature of the subject matter included in or covered by the section of the form; (4) The health benefit plan shall contain a table of contents or an index of the principal sections of the plan, if it has more than 3,000 words printed on three or fewer pages of text, or if the it has more than three pages regardless of the number of words; (5) The form shall be written in a clear and coherent manner and wherever practical, words with common and everyday meanings shall be used to facilitate readability and to aid the insured or policyholder in understanding the coverage provided; and (6) The form shall be written on paper that does not measure more than 8-1/2 inches by 11 inches, if at all possible. (c) For purposes of determining the Flesch readability score provided under this subchapter, the following procedures shall be used: (1) A contraction, hyphenated word, or numbers and letters, when separated by spaces, shall be counted as one word; (2) A unit of words ending with a period, semicolon, or colon, but excluding headings and captions, shall be counted as a sentence; and (3) A syllable means a unit of spoken language consisting of one or more letters of a word as divided by an accepted dictionary. Where the dictionary shows two or more equally acceptable pronunciations of a word, the pronunciation containing fewer syllables may be used. (d) The term "text" as used in this section shall include all printed matter except the following: (1) the name and address of the health carrier; the name or title of the form; the table of contents or index; captions and subcaptions; specification pages, schedules, or tables; and (2) any language required by any federal or state law, or regulation; any medical terminology; or any words which are defined in the form; provided that the health carrier identifies the language or terminology excepted by this subsection and certifies in writing that the language or terminology is entitled to be excepted by this subsection and the grounds for such exception. (e) Form filings subject to this subchapter shall be accompanied by a certification signed by an officer of the health carrier stating the Flesch score of the form, and stating that it meets or exceeds the minimum readability score established by the commissioner. To confirm the accuracy of any certification, the commissioner may require the submission of further information to verify the certification of compliance. Any form filing that does not meet the minimum score shall not be approved by the commissioner, and shall not be issued by the health carrier. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331624 Linda K. Von Quintus-Dorn Chief Clerk Texas Department of Insurance Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-6327 Subchapter W. Miscellaneous Rules for Group/Individual Accident and Health Insurance 28 TAC sec.3.3602 The State Board of Insurance and the Commissioner of Insurance propose an amendment to sec.3.3602, concerning to minimum standards for notice of conversion or group continuation privilege under group accident and health policies. Section 3.3602 is amended to provide that the section applies only to policies issued, delivered, or renewed prior to January 1, 1994. Conversion or continuation of policies issued after that date will be governed by Subchapter F of this chapter (relating to Group Health Insurance Mandatory Conversion Privilege). This change is required by the amendments to Insurance Code, Article 3.51-6, sec.1(d)(3), enacted by the 73rd Legislature. Rhonda Myron, deputy commissioner, life/health, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. There is no anticipated loss or increase in revenue to state or local government as a result of the sections. As this amendment merely conforms the section to a new Subchapter F of this chapter, there are no fiscal implications for large or small businesses. Rhonda Myron, also has determined that for the first five-year period the proposed amendment will be in effect, the public benefits anticipated as a result of enforcing the amendment will be a clarification of the policies which are affected by it. There are no anticipated economic costs to individuals who are required to comply with this amendment. To be considered by the Commissioner and State Board of Insurance, comments on the proposal must be submitted in writing within 30 days after publication of the proposed section in the Texas Register, to Linda von Quintus-Dorn, Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P. O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment should be submitted to Rhonda Myron, Deputy Commissioner, Life/Health, Mail Code 106-1A, Texas Department of Insurance, P. O. Box 149104, Austin, Texas 78714-9104. The amendment is proposed under the Insurance Code, Articles 1.03A, 3.42, 3. 51-6, and 1.23 of House Bill 1461, 73rd Legislature, Regular Session. Insurance Code, Article 3.51-6, sec.1(d)(3), contains requirements for conversion or continuation privileges for the policies covered by that section. Article 3.51-6 requires the board to issue rules and regulations to establish minimum standards for benefits under conversion policies. Regulations will be promulgated to accomplish that purpose in Subchapter F of this chapter (relating to Group Health Insurance Mandatory Conversion Privilege). Those sections, in accordance with the statutory mandate, will be effective for policies issued, delivered, or renewed on or after January 1, 1994. Consequently this section must be amended to conform to that statute and the sections promulgated as a result of that statute. The Insurance Code, Article 3.42, contains filing requirements for policies, contracts, certificates, and forms subject to that statute and specifically authorizes the board to adopt reasonable rules and regulations as necessary to implement and accomplish the provisions of that statute. The Insurance Code, Article 1.03A sets forth the requirements for rules of general application to be adopted by the commissioner of insurance. Section 1.23 of House Bill 1461 authorizes the promulgation and approval of rules relating to rates, policy forms, and endorsements by the State Board of Insurance. The statutes affected by the proposed rule is the Insurance Code, Articles 3.42, and 3.51-6. sec.3.3602. Minimum Standards for Notice of Conversion or Group Continuation Privilege under Group Accident and Health Policies (a) Applicability. The provisions of this section are to apply to any employer offering group health insurance benefits to its employees pursuant to a group health insurance contract providing health care coverage for employees delivered, issued for delivery, or renewed in this state prior to January 1, 1994, for an insurance company, including a group hospital service corporation pursuant to the Insurance Code, Chapter 20. (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 authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331623 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-6327 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.292 The Comptroller of Public Accounts proposes an amendment to sec.3.292, concerning repair, remodeling, maintenance, and restoration of tangible personal property. Amendments to the Tax Code, effective October 1, 1993, exempt the labor to repair tangible personal property damaged within a disaster area. References to remodeling motor vehicles were also added to the section. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on the state or local government. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in providing new information regarding tax responsibilities. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. This amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendments implement the Texas Tax Code, sec.sec.151.0101, 151.151, 151.3111, and 151.350. sec.3.292. Repair, Remodeling, Maintenance, and Restoration of Tangible Personal Property. (the Texas Tax Code sec.sec.151.0101, 151.151, 151. 3111, 151.350). (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Commercial vessel-A ship of eight or more tons displacement that is used exclusively in a commercial enterprise including commercial fishing, but excludes any ship used for sports fishing or pleasure. (2) Extended warranty or service policy-This contract is sold to the buyer of the product for an additional amount. The provisions of the contract become effective after the manufacturer's warranty expires. (3) Maintenance-All work on operational and functioning tangible personal property necessary to sustain or support safe, efficient, continuous operations, or to keep in good working order by preventing the decline, failure, lapse, or deterioration of tangible personal property. (4) Manufacturer's written warranty-A guarantee by the manufacturer that the product at the time of sale is operable and will remain operable for a specified period of time. The manufacturer's warranty is provided without additional cost to the buyer. (5) Remodel-To modify the style, shape, or form of tangible personal property belonging to another without causing a loss of its identity or without causing the item to operate in a new or different manner. (6) Repair-To mend or restore to working order or operating condition tangible personal property that was broken, damaged, worn, defective, or malfunctioning. (7) Repairman-Any person who, under either lump-sum or separated contracts, restores, repairs, performs maintenance services, or replaces a component of an inoperable or malfunctioning item. (b) Services to tangible personal property other than aircraft, commercial vessels, and motor vehicles. Persons who repair, restore, remodel, or maintain tangible personal property belonging to another are providing taxable services. Persons who remodel motor vehicles are also covered by this section. Persons who repair, maintain, or restore motor vehicles should refer to sec.3.359 of this title (relating to Motor Vehicle and Private Aircraft. (1) A service provider is a retailer and must obtain a tax permit and collect sales or use tax on the entire charge for materials, parts, labor, consumable supplies, equipment, and any charges connected to the repair, remodeling, restoration, or maintenance service. (2) A service provider may issue a resale certificate instead of paying sales or use tax to the supplier when purchasing materials that will be transferred to the care, custody, and control of a customer. (3) A service provider must collect sales or use tax on services (labor) under an agreement which provides that the customer will furnish the parts and materials required for the repair. (4) A service provider may accept an exemption certificate instead of sales or use tax when performing a taxable service for a customer exempt from tax or on an item that
                                                                  [which] is exempt from tax. (c) Consumable supplies and equipment. Sales or use tax must be paid by the service provider on supplies, tools, and equipment that
                                                                    [which] are purchased for use in the performance of the repair but that
                                                                      [which] are not transferred to the care, custody, and control of the customer. (d) Responsibilities of remodelers. The responsibilities of remodelers of tangible personal property are the same as the responsibilities of persons providing taxable repair services. (e) Repairs under warranties. (1) Manufacturer's warranties-No tax is due on parts or labor furnished by the manufacturer to repair tangible personal property under a manufacturer's warranty or recall campaign. (A) Records must be kept by the service provider that show that the service and parts were used in repairing an item under a manufacturer's warranty or recall. (B) The service provider may purchase parts to be used in repairs under a manufacturer's warranty or recall tax free by issuing an exemption certificate to the supplier. (2) Extended warranties and service contracts. (A) Tax is due on the sale of an extended warranty, service contract, or service policy for the repair or maintenance of tangible personal property. (B) The person who warrants the item and is obligated to perform services under the terms of the agreement may issue a resale certificate for parts or service to be used in performing the repair or maintenance services covered by the contract. (C) If the person obligated to perform the services uses a third-party repairman to do the work, the repairman may accept a resale certificate from the warrantor of the item instead of collecting tax on the charges to the warrantor. (D) The repairman or warrantor performing the service must collect tax on any charge to the owner for labor or parts not covered by the extended warranty. (f) Contractors and persons who perform real property repair and remodeling. Persons who build new improvements to real property, or repair, restore, or remodel residential real property should refer to sec.3.291 of this title (relating to Contractors). Persons who repair or remodel nonresidential real property should refer to sec.3.357 of this title (relating to Real Property Repair and Remodeling). (g) Fabricating or processing. Persons who fabricate or process tangible personal property for another should refer to sec.3.300 of this title (relating to Manufacturing; Custom Manufacturing; Fabricating; Processing). (h) Exemption for labor to repair tangible personal property in a disaster area. (1) Labor to repair tangible personal property is exempt if: (A) the amount of the charge for labor is separately itemized; and (B) the repair is to property damaged within a disaster area by the condition that caused the area to be declared a disaster area. (2) The exemption does not apply to tangible personal property transferred as part of the repair. (3) In this subsection, "disaster area" means: (A) an area declared a disaster area by the Governor of Texas under the Government Code, Chapter 418; or (B) an area declared a disaster area by the President of the United States under 42 United States Code, sec.5141. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331613 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-4028 34 TAC sec.3.310 The Comptroller of Public Accounts proposes an amendment to sec.3.310, concerning laundry, cleaning, and garment services. Amendments to the Tax Code, effective October 1, 1993, exempt the labor to repair tangible personal property damaged within a disaster area. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on the state or local government. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in providing new information regarding tax responsibilities. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. This amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Texas Tax Code, sec.sec.151.0048, 151.057, 151.302, and 151.350. sec.3.310. Laundry, Cleaning, and Garment Services. (the Texas Tax Code, sec.sec.151.0048, 151.057, 151.302, and 151.350). (a) Personal services means all services listed under Group 721, Major Group 72 of the Standard Industrial Classification Manual, 1972. Personal services listed in Group 721 are laundry, cleaning, and garment services. (b) Sales tax is due on laundry, cleaning, and garment service. Examples include, but are not limited to: (1) carpet cleaning and repairing, except carpet repairing performed in residential structures; (2) diaper cleaning service; (3) drapery cleaning services; (4) dry cleaning services for garments or rugs; (5) fur garment cleaning, repairing, and storage; (6) garment alterations and repairs; (7) ironing or pressing garment services; (8) mending services; (9) power and hand laundry services; (10) rug cleaning, dying, and repairing services; (11) tailoring garments; (12) treating or applying protective chemicals to carpet, upholstery, rugs, or drapery; (13) upholstery cleaning and repairs; (14) uniform or linen cleaning services that provide only the services to clean or launder the customers' uniforms or linens; and (15) valet services. (c) Sales tax is due on cleaning supplies (chemicals, soaps, etc.), machinery, tools, utilities, and equipment used to perform laundry, cleaning, and garment services. (d) With the exception of wrapping and packaging supplies, sales tax is not due on items that are transferred to the customers as an integral part of the laundry, cleaning, and garment personal services. For example, buttons and thread used in mending or tailoring. Examples of items transferred in residential carpet, drapery, or upholstery cleaning include: carpet protectors, fire retardants, antistatic applications, flea killers, and rust inhibitors. See sec.3.285 of this title (relating to Resale Certificate; Sales for Resale). Sales tax is due on the purchase of wrapping and packaging supplies used to provide taxable services. (e) Sales tax is not due on personal services provided through coin-operated machines that are operated by the customer. (f) Sales tax is not due on personal services if performed by an employee for his employer as part of employee's regular duties for which he is paid. Sales tax is due on personal services that are performed on a contractual basis between two or more parties. (g) Sales tax is not due on repairs to carpet in residential real property. See sec.3.291 of this title (relating to Contractors). (h) Exemption for labor to repair tangible personal property in a disaster area. (1) Labor to repair tangible personal property is exempt if: (A) the amount of the charge for labor is separately itemized; and (B) the repair is to property damaged within a disaster area by the condition that caused the area to be declared a disaster area. (2) The exemption does not apply to tangible personal property transferred as part of the repair. (3) In this subsection, "disaster area" means: (A) an area declared a disaster area by the Governor of Texas under the Government Code, Chapter 418; or (B) an area declared a disaster area by the President of the United States under 42 United States Code, sec.5141
                                                                        [Effective January 1, 1989, sales tax is not due on the labor to clean, restore, or repair tangible personal property when damaged along with real property by fire, flood, explosion, natural disasters, or other accident for which a casualty claim could have been filed if the property was insured. The person having the property repaired under this subsection should issue the service provider an exemption certificate in lieu of tax on the labor. The service provider's presumption is that all work is taxable unless an exemption certificate is issued. The service provider must collect sales tax on all materials transferred to the customer in the performance of the repair service]. (i) Records must be kept on all personal services performed. Sales tax is due on the total receipts if adequate records are not maintained. See sec.3. 281 of this title (relating to Records Required; Information Required). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331612 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-4028 34 TAC sec.3.329 The Comptroller of Public Accounts proposes an amendment to sec.3.329, concerning enterprise projects. The amendment reflects changes to the Tax Code, sec.151.429, that allow a sales tax refund for jobs retained, as well as jobs created, by an enterprise project. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on the state or local government. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in providing new information regarding tax responsibilities. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. This amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code sec.151.429. sec.3.329. Enterprise Projects. (the Texas Tax Code s151.429). (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Enterprise project-A qualified business designated by the Texas Department of Commerce as an enterprise project under the Texas Enterprise Zone Act (Texas Civil Statutes, Article 5190.7) for a five-year period. (2) New permanent job-A job that meets the criteria of a new permanent job as defined by the Texas Department of Commerce for enterprise projects. (3) Period-The five-year period that the qualified business has been designated as a project unless the designation is revoked. (4) Qualified employee-A person who works for a business that has been designated an enterprise project and who performs at least 50% of his service for the enterprise project within the enterprise zone. (b) An enterprise project qualifies for a refund of state sales and use tax of $2,000 for each job that has been retained or
                                                                          each new permanent job the enterprise project creates for a qualified employee during its designation as an enterprise project. A qualified business receiving its designation as an enterprise project after August 31, 1991, may not apply for a refund of taxes until after August 31, 1993. (c) Only items of the type described in subsection (d) of this section which are purchased by the enterprise project during the designated period or 90 days prior to its designation may be considered in determining the amount of refund available to the project. (d) Subject to the limitations of subsections (b), (c), (e), (f), and (g) of this section, a refund will be made based on state tax paid purchases of: (1) machinery or equipment for use in the enterprise zone in which the enterprise project is located; or (2) building materials for use in constructing, rehabilitating, or remodeling a structure in the enterprise zone in which the enterprise project is located. (e) An enterprise project is not entitled to a refund of any taxes paid by a contractor under a lump-sum contract unless the contractor has received designation as the enterprise project. (f) Sales and use taxes paid on taxable services are not eligible for refund. Taxes paid on materials purchased in conjunction with services will qualify for refund only when the charge for materials is separated from the charge for services and the amount of tax paid on materials is separated. (g) Subject to the limitations prescribed in this section, refunds will be paid directly to the project. (1) An enterprise project is eligible for a maximum refund of $250,000 in each state fiscal year. (A) The total amount refunded to an enterprise project may not exceed the total amount of state tax paid on qualifying purchases, or the amount determined by multiplying $250,000 by the number of state fiscal years during the designated period of the enterprise project, whichever is less. The refund may not exceed $2,000 for each job retained or
                                                                            each new job created for a qualified employee. (B) An enterprise project that qualifies for a refund that
                                                                              [which] exceeds $250,000 during a state fiscal year may carry the excess to a subsequent year subject to the $250,000 limitation in each year. (C) Any carry-over or other eligible refunds must be applied for no later than the end of the next state fiscal year that
                                                                                [which] follows the fiscal year in which the designation as an enterprise project expires or is removed by the Texas Department of Commerce. (2) Claims for refund must be in writing and must indicate the period for which the refund is claimed and must reflect the written approval of the Texas Department of Commerce with respect to the number of jobs retained or
                                                                                  new permanent jobs created during the period. A claim for refund may be made annually or semiannually. Annual claims cover the period from September-August of each fiscal year. Semiannual claims cover the period from September-February and from March-August of each fiscal year. (h) Refunds conditional. For refunds applied for after August 31, 1991: (1) the qualified business must maintain the same level of employment of qualified employees for three years as existed at the time it qualified for a refund; (2) annually, the Texas Department of Commerce shall certify that the correct level of employment has been maintained; and (3) the comptroller shall assess the qualified business that portion of the refund attributable to any decrease in employment, plus penalty and interest from the date of the refund. (i) An enterprise project must retain records substantiating each claim for refund. The records must be verifiable by audit and include copies of invoices showing the item purchased, the date of purchase, amount of purchase, the amount of tax paid, and the identity of the seller. The records must also show that the machinery and equipment and building materials purchased are for use within the zone. Employment records must also be kept verifying the number of new jobs created. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331611 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-4028 Subchapter V. Franchise Tax 34 TAC sec.3.558 The Comptroller of Public Accounts proposes an amendment to sec.3.558, concerning officer and director compensation. Amendments to this section resulted from the creation of limited banking associations by the 73rd Legislature, 1993. Some amendments were made to eliminate redundancy. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no revenue impact on the state or local government beyond that anticipated in the legislation's fiscal note. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in the conformity of comptroller rules to the Tax Code regarding officer and director compensation for limited banking associations. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. This amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendments implement the Texas Tax Code, sec.171.110. sec.3.558. Earned Surplus: Officer and Director Compensation. (Texas Tax Code, sec.171.110). (a) The provisions of this section apply to franchise tax reports originally due after January 1, 1992. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Internal Revenue Code-The Internal Revenue Code of 1986 in effect for the tax year beginning on or after January 1, 1990, and before January 1, 1991. (2) Employee-Every individual classified as an employee under Internal Revenue Code, sec.3401, and the applicable regulations (i.e., common law employees). An individual is treated as an employee of the party for whom services are performed even if the employee is reimbursed by a third party under a common paymaster or similar arrangement. For the purposes of this section: (A) directors of a corporation or banking corporation are treated as employees of the corporation; (B) managers of a limited liability company are treated as employees even though the managers may also be members. (3) Compensation-The amount reportable to an officer or director for the tax reporting period as includible in the officer/director's federal taxable income without regard to any monetary limitations imposed for federal income tax purposes. Compensation is included wherever reportable on federal tax reporting forms including a Form W-2 Wage and Tax Statement, a Form 1099-MISC, or Schedule K-1 of Form 1065 [(in the case of a limited liability company taxed as a partnership)]. For example: (A) if a corporation (subject to the add-back of officer and director compensation) issues a Form W-2 to an officer, the compensation included in earned surplus is the amount reflected on Form W-2 that must be included in the officer's federal taxable income (Block 10 of the 1991 Form W-2); (B) if a corporation (subject to the add-back of officer and director compensation) issues an officer and director of a corporation a Form W-2 and a Form 1099-MISC, compensation included in the corporation's earned surplus for that officer/director is the sum of the amount reflected on Form W-2 that the officer must include in federal taxable income, the amount reflected on Form 1099-MISC as nonemployee compensation that the director must include in federal taxable income, plus any compensation which would be reportable on Form 1099- MISC except for monetary limitations. (4) Officers and directors of a corporation other than a banking corporation- The officers and directors determined in accordance with the laws of the corporation's state of incorporation and the corporation's by-laws. (5) Executive officers and directors of a banking corporation .
                                                                                    [-] (A) Executive officer of a banking corporation (bank), which includes a limited banking association,
                                                                                      means a person who participates or has authority to participate (other than in the capacity of a director) in major policymaking functions of the bank, whether or not the officer has an official title, the title designates the officer an assistant, or the officer is serving without salary or other compensation. The chairman of the board, the president, every vice president, the cashier, the secretary, and the treasurer of a bank are considered executive officers unless the officer is excluded, by resolution of the board of directors or by the bylaws of the bank, from participation (other than in the capacity of a director) in major policymaking functions of the bank, and the officer does not actually participate therein. The term is not intended to include persons who may have official titles and may exercise a certain measure of discretion in the performance of their duties, including discretion in the making of loans, but who do not participate in the determination of major policies of the bank and whose decisions are limited by policy standards fixed by the senior management of the bank. For example, the term does not include a manager or assistant manager of a branch of a bank unless that individual participates, or is authorized to participate, in major policymaking functions of the bank. (B) Directors of a banking corporation. (i) For a banking corporation, other than a limited banking association, directors [Directors] are determined based on the bank's charter, by-laws, and other requirements imposed by the appropriate regulatory or legal authorities. (ii) For a limited banking association, "directors" means the managers or directors determined based on the articles of association, regulations, and participation agreement if management is vested in a board of managers or board of directors. If management is not vested in a board of managers or board of directors, "directors" means the participants in the limited banking association. (iii) Advisory directors as defined in the Code of Federal Regulations, Title 12, sec.215.2, are not considered directors for the purposes of this section. (6) Officers and directors of a limited liability company - For the purposes of this section, the "officers or directors" are the managers or similar management persons identified in the articles of organization, operating agreement, or similar agreements required under the laws of the state in which the company is organized. (7) Shareholder-An individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or other legal entity in whose name shares issued by a corporation are registered ,
                                                                                        [or] in whose name membership interests in a limited liability company are held, or in whose name participation shares in a limited banking association are held,
                                                                                          unless the formation of an entity is for tax avoidance purposes as indicated in this paragraph. Any entity or individual in whose name shares of more than one class of stock are held shall be counted as one shareholder for the purposes of this section. For example, a shareholder having both common and preferred stock is counted as one shareholder. However, ownership interests held by separate legal entities will be counted as separate shareholders (or members) even if the separate legal entities have common shareholders (or members). If a trust, partnership, or other entity (the investor) which is a shareholder or other owner in a corporation [or limited liability company] (the investee) is organized or maintained primarily to avoid the add-back of compensation under the Tax Code, sec.171.110(a)(1), each shareholder or owner of such investor shall be considered a shareholder of the investee for the purposes of the Tax Code, sec.171.110(b)(1). (8) Tax reporting period - For the purposes of this section, the period upon which the tax is based under the Tax Code, s171.1532 or sec.171.0011. (9) Unless otherwise indicated in this section, the following will apply: (A) "Banking corporation" includes, but is not limited to, a limited banking association; (B) "Corporation" includes, but is not limited to, a banking corporation and limited liability company; (C) "Officer of a corporation" includes, but is not limited to, an executive officer of a banking corporation (as defined in paragraph (5) of this subsection) and an officer of a limited liability company (as defined in paragraph (6) of this subsection). (D) "Director of a corporation" includes, but is not limited to, a director of a limited liability company (as defined in paragraph (6) of this subsection) and a director of a banking corporation (as defined in paragraph (5) of this subsection). (c) Unless otherwise excluded, if an individual is an officer or director of a corporation[, executive officer or director of a bank, or manager of a limited liability company] for a portion of a tax reporting period, compensation for such individual is included in computing earned surplus to the extent compensation is allocable to the portion of the tax reporting period when the individual was an officer or
                                                                                            [,] director[, executive officer, or manager]. (d) If an individual is an officer or director of a corporation, [executive officer or director of a bank, or manager of a limited liability company,] all compensation to such individual in any capacity as an employee (as defined in subsection (b)(2) of this section) of such entity is included in computing earned surplus. (e) Compensation, as defined in subsection (b)(3) of this section, is included in computing earned surplus even if any portion or all of the compensation is capitalized for federal income tax purposes. (f) If any officer or director of a corporation[, executive officer or director of a bank, or manager of a limited liability company] performs services for such corporation[, bank, or limited liability company] which would normally be rendered to the corporation[, bank, or limited liability company] in that individual's capacity as an officer or
                                                                                              [,] director, [or manager,] any payment or other amount deducted by such entity will be compensation to the extent the comptroller determines that the intent was the avoidance of franchise tax. For example, if officers of a parent and subsidiary perform services for both corporations which are billed to the subsidiary by the parent, the comptroller may consider all or any portion of the billings as compensation paid to that subsidiary's officers which are also officers of the parent. Factors used to determine if such payments or other consideration are compensation may include, but are not limited to: (1) the extent of remuneration to such officers, directors, or managers by the entity for whom the services are performed; (2) the size and complexity of the business operations of the entity for whom the services are performed; and (3) the scope of business activities of the entity or individual providing the services. (g) Exemptions from compensation add-back. (1) Compensation is not included in computing earned surplus under the Tax Code, sec.171.110, to the extent the compensation is attributable to any portion of a tax reporting period when a corporation has fewer than 36 shareholders ,
                                                                                                [or] a limited liability company has fewer than 36 members, or a limited banking association has fewer than 36 participants and participant- transferees
                                                                                                  . (2) A corporation or other entity subject to franchise tax is not required to include compensation in computing earned surplus for any portion of a tax reporting period during which the entity qualifies for treatment as an S corporation for federal income tax purposes. If the corporation fails to qualify as an S corporation or S corporation status is terminated for any reason, the compensation will be included in determining earned surplus at the earlier of the time that the entity fails to qualify as an S corporation or S corporation status is terminated unless the entity otherwise qualifies to exclude compensation in computing earned surplus. (3) For the purposes of this subsection, remuneration of officers and directors shall not be considered compensation if such remuneration is excessive. Factors used in determining to what extent remuneration is excessive may include, but are not limited to: (A) the officer's or director's qualifications; (B) the nature, extent, and scope of the officer/director's work; (C) the size and complexity of the business; (D) the comparison of remuneration with the gross and net income of the business; (E) the prevailing general economic conditions; (F) the remuneration compared to distributions to shareholders; (G) the prevailing rates of remuneration for comparable positions in comparable concerns; and (H) the remuneration policy of the taxpayer as to all employees. [(3)](4) A corporation [or limited liability company] is required to include compensation in computing earned surplus for any portion of a reporting period during which the corporation [or limited liability company] fails to qualify for exclusion under the Tax Code, sec.171.110(b). (h) Subsidiary corporations [and limited liability companies]. A subsidiary corporation [or limited liability company] may not qualify for the exclusion under the Tax Code, sec.171.110(b), if it has a parent corporation [or limited liability company] which does not qualify for the exclusion. For the purposes of the Tax Code, sec.171.110(c), a corporation [or limited liability company] qualifies as a parent if it ultimately controls the subsidiary even though the control may arise through any series or group of other subsidiaries or other entities. (1) Control is presumed if a parent company directly or indirectly owns, controls, or holds a majority of the outstanding voting stock of a corporation or ownership
                                                                                                    [membership] interests in another entity
                                                                                                      [of a limited liability company]. (2) In determining if a corporation [or limited liability company] is a parent, the comptroller will take into account ownership through a related corporation, corporate group, or other noncorporate entity. If the corporation [or limited liability company] has control, as defined in paragraph (1) of this subsection, of a related corporation, corporate group, or other noncorporate entity that owns a corporation [or limited liability company], the entire stock or membership interest owned by the related corporation, corporate group, or other noncorporate entity will be considered controlled by the corporation [or limited liability company] owning the related corporation, corporate group, or other noncorporate entity. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas on November 5, 1993. TRD-9331618 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-4028 34 TAC sec.3.561 The Comptroller of Public Accounts proposes an amendment to sec.3.561 concerning enterprise zones. Subsection (j) was added to provide guidelines for corporations receiving an enterprise zone designation after August 31, 1993, in accordance with legislation enacted by the 73rd Legislature, 1993. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Reissig also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be in the conformity of comptroller rules to the Tax Code regarding franchise tax deductions for enterprise zone projects. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. This amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendments implement the Texas Tax Code, sec.171.501 and sec.171.1015. sec.3.561. Enterprise Zones. (the Texas Tax Code, sec.171.501 and sec.171.1015). (a) Except as otherwise provided in this section, the provisions of this section apply to franchise tax reports originally due on or after September 1, 1991. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Enterprise project-A qualified business designated by the Texas Department of Commerce as an enterprise project under the Texas Enterprise Zone Act (Texas Civil Statutes, Article 5190.7) that is eligible for the state tax incentives provided by law for an enterprise project. (2) Enterprise zone-An area of the state designated by the Texas Department of Commerce as an enterprise zone under the Texas Enterprise Zone Act (Texas Civil Statutes, Article 5190.7). (3) New job-A new employment position that is: (A) created by a qualified business that has provided employment to a qualified employee of at least 1,040 hours annually; and (B) intended to be an employment position retained during the period the business is designated as an enterprise project. (4) Qualified business-A person, including a corporation or other entity, that the Texas Department of Commerce certifies has met the necessary criteria specified under the Texas Enterprise Zone Act (Texas Civil Statutes, Article 5190.7). (5) Qualified employee-An employee who works for a qualified business and who performs at least 50% of his service for the business within the enterprise zone. (6) Qualified investment - Capital equipment or other investment that qualifies for depreciation for federal income tax purposes and that is placed in service in the enterprise zone not earlier than the 90th day before the date of designation as an enterprise project. The investment must be used in the normal course of business in the enterprise zone and must not be removed from the zone, except for repair and maintenance. (c) A corporation may apply for a refund under the Tax Code, sec.171.501, each year that it is certified as eligible for refund by the Texas Department of Commerce. (d) The comptroller shall issue a refund under the Tax Code, sec.171.501, after receiving certification from the Texas Department of Commerce that a qualified business has created 10 or more new jobs for qualified employees in its enterprise zone. The 10 or more new jobs must have been created during the calendar year containing the accounting year-end on which the franchise tax report is based. For example, a corporation with a June 30, 1992, accounting year-end would be eligible for a refund of franchise tax paid on its 1993 annual report if 10 or more new jobs are created during the 1992 calendar year. (e) If a corporation is eligible for a refund under the Tax Code, sec.171.501, on its initial report and that report includes a regular annual period, the corporation will be entitled to two refunds: (1) a refund for the initial and second periods; and (2) a refund for the regular annual period. (f) Claims for refund under this rule must be on the form provided by the comptroller for that purpose. The claim must indicate the report year in which franchise tax was paid. The claim must include certification from the Texas Department of Commerce that 10 or more new jobs have been created during the applicable calendar year. (g) A corporation that the Texas Department of Commerce has certified to be a qualified business eligible for a tax deduction may elect to reduce either its apportioned taxable capital or apportioned taxable earned surplus in accordance with the Tax Code, sec.171.1015, on each report based on a fiscal year during all or part of which the corporation is designated an enterprise project. An election for an initial period applies to the second tax period and to the first regular annual period. This requirement is applicable to the first regular annual period whether it is included in the corporation's initial report or first annual report. Otherwise, the election will not be binding on the corporation for future reports. (1) The deduction from apportioned taxable capital is limited to 50% of the depreciated value of qualified investments. For example, a corporation with a June 30 fiscal year-end is designated as an enterprise project on January 3, 1991. The corporation's 1992 annual report (based on its June 30, 1991, fiscal year end) would be the first report in which it would be eligible for a taxable capital deduction under the Tax Code, sec.171.1015. The deduction would apply to qualified investments placed in service in the enterprise zone on or after January 3, 1991. (2) The deduction from apportioned taxable earned surplus is limited to 5.0% of the depreciated value of qualified investments. For example, a corporation with a June 30 fiscal year-end is designated as an enterprise project on January 3, 1991. The corporation would be eligible for the earned surplus deduction on its 1992 annual report (based on its June 30, 1991, fiscal year-end) under the Tax Code, sec.171.1015. The deduction would apply to qualified investments placed in service in the enterprise zone on or after January 3, 1991. (h) A corporation must retain records substantiating its apportioned taxable capital or apportioned earned surplus deduction. The records must be verifiable by audit and include copies of invoices showing the items purchased, the date of purchase, and the cost of the purchase. The records must also reflect the depreciated value of the items purchased and show that these items were placed in service in the zone after the corporation's designation as an enterprise project. (i) A corporation receiving its enterprise project designation after August 31, 1991, cannot claim a tax base deduction under the Tax Code, sec.171. 1015, until after August 31, 1993. For example, a corporation with a November 30, 1991, fiscal year-end is designated an enterprise project on September 30, 1991. The corporation could not claim the tax base deduction on its 1992 report until after August 31, 1993. An amended report would have to be filed at that time. (j) A corporation receiving its enterprise project designation after August 31, 1993, cannot claim a tax base deduction under the Tax Code, sec.171.1015, until after August 31, 1995. For example, a corporation with a November 30, 1993, fiscal year-end is designated an enterprise project on September 30, 1993. The corporation could not claim the tax base deduction on its 1994 report until after August 31, 1995. An amended report would have to be filed at that time. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 1, 1988. TRD-9331617 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-4028 34 TAC sec.3.562 The Comptroller of Public Accounts proposes new sec.3.562, concerning limited liability companies. The new section contains guidelines for determining the taxable capital and earned surplus of limited liability companies. The section is a result of the creation of limited liability companies by the 72nd Legislature, 1991. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Reissig also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be in the conformity of comptroller rules to the Tax Code regarding limited liability companies. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the new section may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. The new section is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Tax Code, sec.171.001. sec.3.562. Limited Liability Companies. (Texas Tax Code, sec.171.001). (a) Effective date. The provisions of this section apply to franchise tax reports originally due on or after August 26, 1991. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Limited liability company-A company organized and existing under the provisions of the Texas Limited Liability Company Act or a foreign limited liability company described in the Act, Article 1.02 A(9). (2) Internal Revenue Code-The Internal Revenue Code of 1986 in effect for the federal tax year beginning on or after January 1, 1990, and before January 1, 1991, and any regulations adopted under that code applicable to that period. (3) C corporation-A corporation defined in Internal Revenue Code, sec.1361(a)(2). (4) Tax reporting period-For the purposes of this section, the period upon which the tax is based under the Tax Code, sec.171.1532 or sec.171.0011. (c) Taxable capital. To determine the taxable capital of a limited liability company, add the company's members' contributions, as provided for under the Texas Limited Liability Company Act, and surplus. (1) The Texas Limited Liability Company Act, Article 5.01A, provides that the contribution of a member may be in cash, property, or services rendered, or a promissory note or other obligation to pay cash or transfer property to the limited liability company. (2) A member's contribution is the sum of the cash contributed and the agreed value of any other contribution made plus the amount of cash and the agreed value of any other contribution which the member has agreed to make in the future as an additional contribution, provided that the promise by a member to make a contribution to, or otherwise pay cash or transfer property to, the limited liability company is set out in writing and signed by the member. (d) Earned surplus. Where and to the extent a limited liability company allocates income and deductions to its members for federal income tax, such items will be treated as income and deductions in determining earned surplus of the limited liability company as though it were taxed as a Corporation for federal income tax purposes. (1) Federal income tax requirements or limitations imposed on the limited liability company apply for purposes of this section. (2) Unless otherwise provided, federal income tax limitations or other restrictions imposed on the members of the limited liability company with regard to claiming losses, deductions, and other items are ignored in determining taxable earned surplus of the limited liability company. (e) Limited liability company treated as partnership for federal income tax purposes. Treatment of specific items reported to limited liability company members in computing reportable federal taxable income for earned surplus purposes. (1) Ordinary income from trade or business activities is included and ordinary losses from such activities are deducted. (2) Net income from rental activities is included and net losses are deducted. (3) Taxable interest is included unless the interest qualifies for exclusion under the provisions of sec.3.555(k) of this title (relating to Earned Surplus: Computation). Interest income which is exempt from federal income tax is excluded and expenses related to such income are not deductible in computing reportable federal taxable income. (4) Dividend income received by a limited liability company is included except for: (A) amounts reportable under the Internal Revenue Code, sec.78 or sec.951-964; (B) dividends from a subsidiary, associate, or affiliate that does not transact a substantial portion of its business or regularly maintain a substantial portion of its assets in the United States: (i) if 80% or more of a corporate payor's gross receipts (as computed for earned surplus) are attributable to business outside the United States, then the corporate payor is not doing a substantial portion of its business within the United States. The payor's gross receipts are measured based on the period upon which the recipient's tax is based under the Tax Code, sec.171.0011 or sec.171.1532; or (ii) if 80% or more of a corporate payor's tangible assets (based on original cost) are situated outside the United States, then the corporate payor does not maintain a substantial portion of its assets within the United States. The payor's assets are valued at the end of the tax reporting period upon which the recipient's tax is based under the Tax Code, sec.171.0011 or sec.171.1532; (C) dividends which qualify for exclusion under the provisions of sec.3. 555(k) of this title (relating to Earned Surplus: Computation). (5) Royalty income is included. (6) Payments made to members which qualify as guaranteed payments under the Internal Revenue Code, sec.707(c), and which constitute ordinary and necessary business expenses under Internal Revenue Code, sec.162, but are not subject to Internal Revenue Code, sec. 263, are deductible. (7) Salaries and wages used in computing ordinary income or loss are allowed in computing reportable federal taxable income after deduction for any jobs credit claimed on the limited liability company federal income tax return. Other expenses which are reduced for credits claimed on the federal income tax return similarly are allowed net of such credits. (8) Deductions for charitable contributions are allowed. (9) Capital losses in excess of capital gains are deductible. (10) If deductions for oil and gas depletion or intangible drilling costs are allowable to members of a limited liability company rather than to the entity itself, the limited liability company must compute such deductions as though the entity were taxed as a C corporation for federal income tax purposes. (11) The limited liability company is allowed to deduct Internal Revenue Code, sec.179, amounts reported to members, subject to limitations imposed on the limited liability company as if it were taxed as a C corporation. (12) A limited liability company may deduct foreign income taxes reported to members unless the taxes are otherwise deducted in computing taxable items reported to members. (13) No deduction is allowed for amounts reported to members which are personal expenses even though such items may qualify as itemized deductions on the member's income tax return. (f) Officer and director compensation. See sec.3.558 of this title (relating to Earned Surplus: Officer and Director Compensation) regarding compensation used in computing earned surplus of a limited liability company. (g) One-person limited liability companies. A one-person limited liability company may not deduct officer and director compensation from earned surplus. (h) Corporate members of limited liability companies. (1) Taxable capital. (A) A corporate member of a limited liability company must use the costmethod of accounting for its investment in the limited liability company. (B) Cost is the original valuation of the investment under Generally Accepted Accounting Principles. There will be no adjustment for the member's distributive share of the limited liability company's items of income or loss as reported annually by the limited liability company. The cost of an investee (limited liability company) will be reduced by distributions and/or withdrawals from the investee insofar as such distributions represent a return of capital. (C) To the extent a distribution and/or withdrawal from the limited liability company is made up of current or previous undistributed earnings of the limited liability company and not a return of capital, it is included in gross receipts for taxable capital of the receiving corporate member. These distributions and/or withdrawals are apportioned based on the state of organization of the payor (limited liability company). (2) Earned surplus. (A) A corporate member's distributive share of a limited liability company's items of income or loss is not included in the member's earned surplus or gross receipts for earned surplus to the extent the items would have been reported at the limited liability company level. (B) Distributions and/or withdrawals from a limited liability company are not included in earned surplus and are not considered gross receipts for apportionment purposes unless a gain is recognized for federal income tax purposes. These distributions and/or withdrawals are apportioned based on the state of organization of the payor (limited liability company). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331615 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-4028 34 TAC sec.3.564 The Comptroller of Public Accounts proposes new sec.3.564, concerning services for regulated investment companies: apportionment. The new section contains guidelines for determining the apportionment of receipts from services to regulated investment companies for taxable capital and earned surplus purposes. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in the conformity of comptroller rules to the Tax Code regarding apportionment for regulated investment companies. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the new section may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. This new section is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Texas Tax Code, sec.171.106. sec.3.564. Services for Regulated Investment Companies: Apportionment. (the Texas Tax Code, sec.171.106). (a) Effective date. The provisions of this section apply to franchise tax reports originally due on or after January 1, 1992. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Administration services-Include clerical, accounting, bookkeeping, data processing, internal auditing, legal and tax services, but only when performed by a corporation that also provides management or distribution services to a regulated investment company during the year in which the administration services are provided to that regulated investment company. (2) Average-Arithmetic mean. (3) Closed-End Company-Any management company other than an open-end company, which is defined in paragraph (9) of this subsection. (4) Commercially domiciled in this state-For an individual, a resident of this state. For a business entity, the principal place from which the trade or business of the entity is conducted. It is presumed that the commercial domicile of a shareholder is his, her or its mailing address on the records of the regulated investment company as of the last day of the year. This presumption may be rebutted by sufficient supporting evidence. (5) Derived, directly or indirectly-Received from a regulated investment company or from the shareholders in such investment company, in their capacity as such. (6) Distribution services-Include the service of selling shares as well as such ancillary services as advertising, servicing investor accounts, and marketing shares of a regulated investment company, but only when the ancillary services are performed by a person who is (or was, in the case of a closed-end company) also engaged in the service of selling such shares. An open end company that sells shares must perform such service pursuant to the federal Investment Company Act of 1940, sec.15(b), as amended. (7) Internal Revenue Code-The Internal Revenue Code of 1986 in effect for the federal tax year beginning on or after January 1, 1990, and before January 1, 1991, and any regulations adopted under that code applicable to that period. (8) Management services-Those services related to the management of the investment portfolio of a regulated investment company, including the rendering of investment advice to such company, making determinations as to when sales and purchases of securities are to be made on behalf of such company, or the selling or purchasing of securities constituting assets of such company, and related activities, but only when such activities are performed pursuant to a contract with the regulated investment company entered into under the provisions of the federal Investment Company Act of 1940, sec.15(b), as amended. (9) Open-End Company-A management company that is offering for sale or has outstanding any redeemable security of which it is the issuer. (10) Year-For the purposes of this section, the period upon which the tax is based under the Tax Code, sec. s171.0011, 171.153, or 171.1532. (c) Apportionment formula. Where receipts arise from the sale of management, administration, or distribution services to a regulated investment company, the portion of such receipts received from each such regulated investment company which shall be deemed to arise from services performed in this state shall be determined by multiplying the corporation's gross receipts derived from such services by a fraction, the numerator of which is the average of the sum of shares owned at the beginning of the year and the sum of shares owned at the end of the year by the regulated investment company shareholders who are commercially domiciled in this state, and the denominator of which is the average of the sum of shares owned at the beginning of the year and the sum of shares owned at the end of the year by all regulated investment company shareholders. (d) Procedure for computing amounts. (1) For purposes of the taxable capital component, only gross receipts from services for regulated investment companies shall be apportioned in accordance with subsection (c) of this section. All other gross receipts shall be apportioned as required under the Tax Code and sec.3.549 of this title (relating to Taxable Capital: Apportionment). (2) For purposes of the earned surplus component, only gross receipts from services for regulated investment companies shall be apportioned in accordance with subsection (c) of this section. All other gross receipts shall be apportioned as required under the Tax Code and sec.3.557 of this title (relating to Earned Surplus: Apportionment). (3) For example, for purposes of the taxable capital component, assume Corporation X had gross receipts of $1 million from services to a regulated investment company for the year ending December 31, 1991. X will apportion these receipts by determining a fraction in accordance with subsection (c) of this section. By applying this fraction, X determines that $200,000 of the $1 million is apportioned to Texas. Corporation X also had gross receipts of $2 million from sources other than services to a regulated investment company. $1 million of this amount is apportioned to Texas as required by the Tax Code and sec.3.549 of this title (relating to Taxable Capital: Apportionment). X's apportionment factor is 40% ($1,200,000/$3 million). This apportionment factor is then applied to X's taxable capital. (4) For example, for purposes of the earned surplus component, assume Corporation Z had gross receipts of $2 million from services to a regulated investment company for the year ending December 31, 1991. Z will apportion these receipts by determining a fraction in accordance with subsection (c) of this section. By applying this fraction, Z determines that $800,000 of the $2 million is apportioned to Texas. Corporation Z also had gross receipts of $4, 000,000 from sources other than services to a regulated investment company. $2, 800,000 of this amount is apportioned to Texas as required by the Tax Code and sec.3.557 of this title (relating to Earned Surplus: Apportionment). Z's apportionment factor is 60% ($3,600,000/$6 million). This apportionment factor is then applied to Z's earned surplus. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331614 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-4028 Subchapter AA. Automotive Oil Sales Fee 34 TAC sec.3.701 The Comptroller of Public Accounts proposes an amendment to sec.3.701, concerning the automotive oil sales fee. The 73rd Legislature, 1993, amended the Health and Safety Code, Chapter 371, effective October 1, 1993, to clarify when an importer is liable for the fee and to change the state agency authorized to administer the used oil recycling fund. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on the state or local government. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in providing new information regarding tax responsibilities. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. This amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Health and Safety Code, sec.371.062. sec.3.701. Reporting Requirements. (the Health and Safety Code, sec.371. 062). (a) Report and payment required. (1) Each automotive oil manufacturer or importer shall file a report with the comptroller stating the number of quarts of automotive oil sold, imported, used, or consumed in this state. (2) An automotive oil manufacturer who makes a first sale or use of automotive oil in Texas is liable for the fee. (3) An automotive oil importer who imports or causes to be imported automotive oil into Texas for sale, use, or consumption is liable for the fee at the time the oil is received by the importer
                                                                                                        . (b) Amount of fee. (1) Except as provided in paragraph (2) of this subsection, the rate of the fee shall be $.02 per quart or $.08 per gallon of automotive oil. (2) The Texas Natural Resource Conservation Commission, formerly the Texas Water Commission,
                                                                                                          [Department of Health] may adjust the fee rate to meet the expenditure requirements of the used oil recycling program, and to maintain an appropriate fund balance. The fee rate may not exceed $.05 per quart or $.20 per gallon. (3) On or before September 1 of each year, the Texas Natural Resource Conservation Commission, formerly the Texas Water Commission,
                                                                                                            [Department of Health] and the comptroller shall jointly issue notice of the effective fee rate for the next fiscal year. (c) Due date of report and payment. (1) The automotive oil fee report and payment are due no later than the 25th day of the month following the end of each calendar quarter in which the liability for the fee is incurred. (2) An automotive oil manufacturer or importer of automotive oil must file a quarterly report even if there is no fee to report. (d) Discount. A person required to pay the fee may retain 1.0% of the amount of the fees due from each quarterly payment as reimbursement for administrative costs. (e) Penalty. Penalties due on delinquent fees and reports shall be imposed as provided by the Tax Code, sec.111.061. (f) Interest. Interest due on delinquent fees shall be imposed as provided by the Tax Code, sec.111.060. (g) Refunds. Refunds of the automotive oil fee will be allowed as provided by the Tax Code, sec.sec.111.104-111.107. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331610 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XIII. Texas Commission on Fire Protection Chapter 521. Fire Extinguisher Rules 37 TAC sec.521.21, sec.521.22 The Texas Commission on Fire Protection proposes amendments to sec.521.21, and sec.521.22, concerning the business of leasing, renting, selling, installing, and servicing portable fire extinguishers; the planning, certifying, installing, or servicing of fixed fire extinguishers systems; and the prohibiting of portable fire extinguishers, fixed fire extinguisher systems, and to extinguisher equipment not labeled or listed by a testing laboratory. The amendment to sec.521.21 reinserts the word "only" which was erroneously deleted in the last publication. The amendment to sec.521.22 reflects the deletion of the word "only" in paragraph (c) in order to allow fire extinguisher companies to add additional desired information to the installation label. G. Mike Davis, interim state fire marshal, has determined that the amendment making the initial examination fee and re-examination fee non-refundable is necessary because of limited seating at the Commission headquarters for examinations of prospective licensees. The amendment requiring licensed firms to submit an installation certificate to the State Fire Marshal's office is necessary in order to give enforcement investigators vital technical information about a fixed extinguisher system's compliance with State law. Mr. Davis also has determined that there will be fiscal implications as a result of enforcing or administering the amendment to s521.21. The effect on state government for the first five-year period will be the cost of additional man-hours for processing the installation certificate in the amount of $850 per year. Mr. Davis also has determined that there will not be fiscal implications for local government during the next five-year period the amendment will be in effect. Mr. Davis also has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the sections will be adequate testing space for all persons taking examinations qualifying them as fire protection licensees. Additionally, the required installation certificate will allow the State Fire Marshal's office to accurately assess fixed fire extinguisher systems for compliance with State laws. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Mr. Davis determined that small business compliance with the amendment will cost $1,200 per year per employee for each year of the next five year period. Most large businesses will incur the same cost for implementing this amendment. Comments on the proposal may be submitted to Michael E. Hines, Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286. The amendments are proposed under Texas Civil Statutes, Article 5.43-1, sec.2, which provide the Texas Commission on Fire Protection with the authority to adopt rules necessary to its administration through the state fire marshal for the protection and preservation of life and property. sec.521.21. Installation Labels for Fixed Extinguisher Systems. (a) After an installation has been completed, an installation label must be affixed to the control head or panel of the fixed fire extinguisher system and an installation certificate form shall be sent to the State Fire Marshal's Office
                                                                                                              . The signature of the licensee on the label certifies that the system has been installed according to law. Labels shall be five inches in height and four inches in width and shall be of the gum label type. They shall not be red in color. Installation labels shall contain only the following information in the format of the label shown in subsection (b) of this section: (1)-(6) (No change.) (b) (No change.) sec.521.22. Service Tags. (a)-(b) (No change.) (c) Service tags must bear [only] the following information in the format of the tag shown in subsection (g) of this section: (1)-(10) (No change.) (d)-(h) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331679 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: December 13, 1993 For further information, please call: (512) 873-1700 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 27. Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) Subchapter G. Additional Facility Responsibilities 40 TAC sec.27.719 The Texas Department of Human Services (DHS) proposes new sec.27.719, concerning consent to treatment by surrogate decision-makers, in its Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) rule chapter. The purpose for the new section is to comply with Senate Bill 1142. This legislation requires the Texas Department of Mental Health and Mental Retardation (TXMHMR) to implement a surrogate decision-making process in which clients deemed incompetent by the interdisciplinary team may have individuals appointed to make specific decisions for them. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Raiford also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be increased protection of clients' rights in ICF-MRs. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section. Questions about the content of the proposal may be directed to Maxcine Tomlinson at (512) 450-3169 in DHS's Institutional Programs Section. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-247, Texas Department of Human Services W-402, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. The new section is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new section implements the Health and Safety Code, Title 7, Subtitle D, sec.sec.597.001-597.055. sec.27.719. Consent to Treatment by Surrogate Decision-Makers. The facility must comply with Title 25, Texas Administrative Code, Chapter 405, Subchapter J, sec. s405.231-405.249, concerning surrogate decision-making on behalf of residents in Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) and facilities serving persons with related conditions (ICFs-MR/RC). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 5, 1993. TRD-9331604 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: January 1, 1994 For further information, please call: (512) 450-3765